POLICY PAPER - FAIRNESS
Everyone should be entitled to live with dignity and in safety with their families. However, refugees and people seeking asylum are often denied these basic rights in Australia.
Permanent protection is essential for refugees to reunite with their families and rebuild their lives with certainty and hope for their future.
Refugees and people seeking asylum have also suffered devastating consequences due to Australia’s broken refugee status determination process. Unfair processes, poor decision-making, lengthy delays, and political interference have plagued the refugee status determination process, and immediate action is required.
For information on Australia’s immigration detention regime and refugees’ exclusion from mainstream social support, please refer to the ASRC’s policy position papers on Freedom and Safety respectively.
Recommendations
- Provide permanent residency to all people seeking asylum subjected to the Fast Track process.
- Provide all people seeking asylum with access to a fair and efficient refugee status determination process, including abolition of the Fast Track process and introduction of the ‘90 day rule’ regarding processing timeframes.
- Abolish temporary protection visas and provide permanent protection to all refugees.
- Provide government-funded legal representation to people seeking asylum throughout the refugee status determination process.
Policy Achievements
The ASRC’s 2022 fairness policy paper included these recommendations which have been achieved.
On 13 February 2023, the Albanese Government announced that TPV and SHEV holders would be eligible to apply for permanent Resolution of Status visas (RoS Visa) from March 2023. As of June 2023, 3,000 RoS Visas have been granted. The Government estimates that the majority of RoS Visa applications will be finalised within 12 months from a person’s RoS Visa application date.
In February 2023, the Albanese Government abolished Ministerial Direction 80, a policy which discriminated against refugees who arrived by sea by deprioritising their family visa applications. Under the new policy, Ministerial Direction 102, all families will be entitled to have their family visa applications dealt with under the usual processes, regardless of how they travelled to Australia.
In 2023, the Albanese Government will introduce legislation to abolish the AAT and replace it with a new federal administrative review body, which will address concerns regarding protracted delays and bias, including a transparent and merit-based system of appointments¹. This is an important step towards establishing a fair and efficient refugee status determination process.
¹ Australian Government – Attorney-General’s Department, A new system of federal administrative review, https://www.ag.gov.au/legal-system/new-system-federal-administrative-review.
Background
Between October 2013 and December 2014, the Abbott Government amended Australia’s laws to prevent people who sought asylum by sea from accessing permanent protection in Australia.
This affected approximately 31,000 people, including those who sought asylum by sea between August 2012 and December 2013, people who sought asylum by sea before this period whose protection visa applications were not finalised, and children born to the families in this cohort. This group is collectively known as the ‘Legacy Caseload’.
People in the Legacy Caseload were only eligible to apply for temporary protection visas, namely Temporary Protection Visas (TPVs) and Safe Haven Enterprise Visas (SHEVs).
Most people within the Legacy Caseload were also subjected to the ‘Fast Track’ review process. Fast Track is a misleading name for the slow and defective refugee status determination process for people who sought asylum by sea, which commenced in 2015 (see below for detailed explanation of why the Fast Track system is unfair and broken).
In February 2023, the Albanese Government announced a pathway to permanent residency for TPV and SHEV holders. This pathway is via an application for a Resolution of Status Visa (RoS Visa). People within this cohort could apply for a RoS Visa from March 2023. However, the government’s announcement excluded approximately 10,000 people seeking asylum, who are not TPV/SHEV holders and have been living in Australia for 10 years.
The pathway to permanency for this cohort should not involve any further assessment of their protection claims.
It is grossly unfair to expect people seeking asylum to still meet this threshold over 10 years after they fled their countries of origin.
The Department’s processing times for TPVs and SHEVs has ballooned to over six years², which is the main reason why people seeking asylum are still waiting for a permanent solution over a decade later.
People seeking asylum should not be punished for the Government’s bureaucratic bungling and ineffective processing, which caused excessive delays that prevented them from obtaining a fair and final outcome for their protection visa applications.
People subjected to the unfair Fast Track process have been living in Australia for over a decade – they have been working, paying taxes, attending school and rebuilding their lives.
After seeking asylum for over 10 years, living with uncertainty and being separated from their families, the moral and humane response is to provide permanent residency for all people seeking asylum impacted by the unfair and cruel Fast Track system.
Recommendation 1: Provide permanent residency to all people seeking asylum subjected to the Fast Track process.
1. Australian Government – Attorney-General’s Department, A new system of federal administrative review, https://www.ag.gov.au/legal-system/new-system-federal-administrative-review.
2. Senate Legal and Constitutional Affairs Committee, 2022-23 Budget estimates October and November, OBE22-177, https://www.aph.gov.au/api/qon/downloadestimatesquestions/EstimatesQuestion-CommitteeId6-EstimatesRoundId19-PortfolioId20-QuestionNumber177.
² Senate Legal and Constitutional Affairs Committee, 2022-23 Budget estimates October and November, OBE22-177, https://www.aph.gov.au/api/qon/downloadestimatesquestions/EstimatesQuestion-CommitteeId6-EstimatesRoundId19-PortfolioId20-QuestionNumber177.
Abolish the Fast Track process
In December 2014, the Australian Government introduced an unfair process to assess the protection claims of people seeking asylum who arrived by sea – this process is referred to as ‘Fast Track’ and applies to people who arrived by sea after August 2012.
Under the Fast Track process, if a person seeking asylum had their protection visa application refused by the Department, they can only seek limited merits review before the IAA.
The IAA is a review body within the Administrative Appeals Tribunal (AAT), which is responsible for independent merits review of administrative decisions made by the Australian Government.
However, the IAA is not required to observe minimum standards of procedural fairness. IAA decisions are generally based on a paper review of information before the Department, and people seeking asylum do not have a right to a hearing to present their protection claims.
Applicants are only allowed to provide a five-page submission, which must be provided within three weeks from the date their case is referred to the IAA from the Department.
Many people seeking asylum cannot write their own submissions and are not able to read the Department decision due to language barriers.
Also, people’s engagement in the IAA review process is significantly hindered by the Government ending funded legal representation for people seeking asylum (see below for more details).
Consequently, the IAA’s decision-making has been unjust and riddled with errors. Since 2020, over 30% of IAA decisions (i.e. over 300 decisions) reviewed by the courts were found to be unlawful³; many people would not have been able to access judicial review or legal representation, meaning the number of unlawful decisions is likely to be considerably higher. There is a real concern that the Department’s errors are not rectified through the review process, with the IAA effectively acting as a rubber stamp for the Department by affirming 90% of Department decisions.₄
Case Study Joseph fled Iran in 2013 and sought asylum. His SHEV application was refused by the Department and IAA, and he sought judicial review. The IAA made a number of unlawful decisions, meaning that Joseph has faced multiple processes before the IAA and court. He is awaiting the outcome of a judicial review matter of his third IAA decision and has been seeking asylum for over a decade. Even if Joseph is successful before the courts again, highlighting the repeated failure of the system to determine his claim lawfully, he is unlikely to obtain a positive outcome due to the IAA’s defective decision-making. Joseph deserves a chance for his protection claims to be assessed by a fair merits review process. |
The Fast Track process has failed on many levels – it has produced unfair and legally incorrect decisions, caused protracted delays and re-traumatised people seeking asylum. The Fast Track system discriminates against certain people seeking asylum based on their mode of arrival to Australia; however, all people seeking asylum should have access to a fair and efficient refugee status determination process regardless of how they came to Australia.
The 2021 ALP platform commits to end the Fast Track process, including abolition of the IAA:
“Labor will create an independent Refugee Review Tribunal and abolish the Immigration Assessment Authority. The Tribunal will allow for procedurally fair, simple, affordable and accessible processes and procedures, including in relation to adverse credibility findings, for the review of refugee related decisions…
16. The existing fast track assessment process under the auspices of the Immigration Assessment Authority and the limitation of appeal rights does not provide a fair, thorough and robust assessment process for persons seeking asylum.
17. Labor will abolish this fast track assessment process.”₅
However, the Albanese Government is yet to abolish the Fast Track process and over 5,500 people seeking asylum only have the option to apply for a protection visa under this unfair system. Whilst the Government has announced that it will abolish the AAT, there has been no clarification on whether the Fast Track system and the IAA will be abolished. Concerningly, the 2023/2024 Federal Budget indicated that the IAA received an additional $4 million in funding. Further funding of the IAA will lead to more unjust outcomes for people seeking asylum and an inefficient use of court resources to process appeals. The ASRC strongly urges the Government to redirect the IAA’s funding to the AAT₆ (until it is replaced by a new review body) to determine existing IAA matters, and for the IAA to be abolished immediately.
Fix protracted processing delays
Australia’s refugee status determination process is broken. One of the key reasons that the system has failed people seeking asylum is lengthy processing delays. In 2018-2019, the average time for the Department to process a permanent protection visa application was 334 days; by 2022-23 this had more than tripled to 1,076 days₇. Lawyers at the ASRC have observed that it can take one to three years for an applicant to be invited to a Department interview, and even when a person is found to be owed protection, it can take an additional year for the protection visa to be granted.
If a person’s permanent protection visa application is refused by the Department, then they must contend with extraordinary delays seeking review before the AAT/IAA and the courts₈. These delays mean that a person seeking asylum could wait over a decade for a final visa outcome.
Protracted delays cause significant distress to people seeking asylum as they are unable to plan with any certainty for their future. It denies them the right to rebuild their lives and reunite with family and exacerbates mental health issues, which in turn can impact on their ability to engage in the refugee status determination process. Also, lengthy processing times force people seeking asylum into destitution because they are denied mainstream social support and often do not have work rights₉. Timely decision-making which does not compromise on quality and fairness is essential to uphold the rights of people seeking asylum to ensure they can live in safety and with dignity.
Case Study Benjamin arrived in Australia on a student visa after fleeing his country of origin due to facing serious harm because of his sexuality. He was unaware that he could apply for a protection visa on these grounds. Benjamin’s mental health declined due to his trauma. He was unable to meet his student visa requirements and his student visa was cancelled. Benjamin experienced homelessness and was extremely unwell. He was taken into detention; at this time he was connected with the ASRC and he applied for a protection visa and was released from detention on a bridging visa without work rights. Benjamin waited over five years for his protection visa to be granted and could not work during this time or access Medicare despite his complex health needs. Benjamin applied for work rights on his bridging visa several times, but the Department refused to grant him work rights because it did not consider that he had an ‘acceptable reason’ for his delay in applying for a protection visa. The protracted delay and lack of work rights caused immense distress and exacerbated Benjamin’s mental health conditions. |
The Albanese Government has started taking steps to address these issues. The ASRC welcomes the abolition of the AAT and the Government’s commitment to replace it with a new federal administrative review body that provides fair and timely merits review₁₀.
However, this will not address the extraordinary delays at the Department stage of the refugee status determination process.
Although the Albanese Government has committed resources and made progress in reducing the backlog of certain visa applications, this has not extended to protection visas₁₁. Also, whilst additional resources will assist with reducing protection visa processing times, the Government must take further steps to avoid this situation again and ensure additional funding for visa processing is responsibly managed to reduce delays.
Clear guidelines to ensure timely refugee status determination processing and accountability towards these standards are required for meaningful and lasting change.
The 2021 ALP platform commits to reintroduce the ’90 day rule’ into the Migration Act 1958 (Cth) to ensure that all refugee status determinations are concluded within 90 days, and acknowledges that reporting on the implementation of the ‘90 day rule’ is an “important accountability measure in ensuring the Government operates in a timely way in assessing protection applications” Financial Review, Visa backlog cut, as 2 million applications processed, 13 October 2022, https://www.afr.com/politics/federal/visa-backlog-cut-as-2m-applications-processed-20221013-p5bpey. ₂. This legislative standard will reduce the risk of Australia repeating its past mistakes, and ensure that people seeking asylum have certainty regarding the timeframes for protection visa processing.
Recommendation 2: Provide all people seeking asylum with access to a fair and efficient refugee status determination process, including abolition of the Fast Track process and introduction of the ‘90 day rule’ regarding processing timeframes.
³Administrative Appeals Tribunal Annual Report 2021-22, 2022, Chapter 4 – Immigration Assessment Authority, https://www.transparency.gov.au/annual-reports/administrative-appeals-tribunal/reporting-year/2021-22-44 (appeals remitted in relation to tota l appeals finalised).
₄Ibid.
₅ Australian Labor Party, ALP National Platform – As Adopted at the 2021 Special Platform Conference, 2021, p 124.
₆ Australian Government – Attorney-General’s Department, A new system of federal administrative review, https://www.ag.gov.au/legal-system/new-system-federal-administrative-review.
₇Senate Legal and Constitutional Affairs Committee, 2022-23 Budget estimates October and November, OBE22-180, https://www.aph.gov.au/api/qon/downloadestimatesquestions/EstimatesQuestion-CommitteeId6-EstimatesRoundId19-PortfolioId20-QuestionNumber180.
₈As of March 2023, processing times for AAT protection cases could take up to 2,021 days – see Administrative Appeals Tribunal, Migration and Refugee Division processing times, 2023, https://www.aat.gov.au/resources/migration-and-refugee-division-processing-times. Also, migration cases at the Federal Circuit and Family Court of Australia have increased nearly threefold over the last decade from 1,981 in 2012-13 to 5,236 in 2020-21. Generally applicants seeking judicial review at court of their Protection visa decision wait at least two to three years for their matter to be finalised.
₉ For more information refer to the ASRC policy position on Safety.
₁₀Australian Government – Attorney-General’s Department, A new system of federal administrative review, https://www.ag.gov.au/legal-system/new-system-federal-administrative-review.
₁₁ Financial Review, Visa backlog cut, as 2 million applications processed, 13 October 2022, https://www.afr.com/politics/federal/visa-backlog-cut-as-2m-applications-processed-20221013-p5bpey.
₁₂ Australian Labor Party, ALP National Platform – As Adopted at the 2021 Special Platform Conference, 2021, p 124.
The Albanese Government’s TPV/SHEV conversion announcement did not abolish the existence of the temporary protection regime in Australia. In fact, the Government included specific amendments to the Migration Regulations 1994 (Cth) to clarify that TPVs and SHEVs will continue to exist after the conversion announcement₁₃. This means that refugees will be subjected to temporary protection in the future – this applies to refugees who arrive in Australia without a valid visa (e.g. people who arrive by sea or people who arrive by plane and their visas are cancelled at the airport because they intend to seek asylum). In contrast, people who arrive in Australia with a valid visa, and then seek asylum are eligible to apply for a permanent protection visa₁₄.
A person’s mode of arrival to Australia must not determine their eligibility for permanent protection; this practice is discriminatory, unfair and results in certain refugees being treated as second class.
Australia should have learnt from its past mistakes that temporary protection is harmful. Temporary protection visas were first introduced in Australia in 1999 and were abolished in 2008 due to significant community pressure regarding their harmful impact. A 2006 Senate Inquiry confirmed that temporary protection causes immense suffering₁₅. Mental health experts found that refugees on TPVs experienced increased anxiety, depression and post-traumatic stress disorder in comparison to permanent protection visa holders₁₆. Further, the Australian Human Rights Commission reported that temporary protection creates uncertainty for children, which worsens their mental health and hinders their participation in education opportunities₁₇.
Despite the overwhelming evidence indicating that temporary protection visas cause devastating outcomes and are bad policy, they were reintroduced by the Coalition Government in December 2014.
The cruelty of temporary protection is heightened by restrictions that prevent family reunion for TPV and SHEV holders, including no family sponsorship and limitations on overseas travel. As a result, families are torn apart and separated for protracted and indefinite periods of time. In 2019, the Australian Human Rights Commission published a report on the impact of the Fast Track process and temporary protection on refugees and people seeking asylum, which confirmed that temporary protection continues to inflict immeasurable harm on refugees₁₈. Family unity is essential for refugees to rebuild their lives in Australia. Refugees should not have to choose between living in safety and reuniting with their families.
Case Study Abdul fled Afghanistan due to his Hazara ethnicity and came to Australia by sea in 2013. As Abdul arrived by sea, he required permission from the Minister for Immigration to apply for a visa. In 2017, he was only permitted to apply for a TPV via the Fast Track process. The Department and IAA refused his protection visa application, and Abdul sought judicial review of his IAA decision. The court remitted his matter to the IAA in 2020 and he was granted a TPV in 2021, but was not able to sponsor his wife and children in Afghanistan. He is now waiting for his TPV to be converted to a permanent RoS Visa. Abdul has been in Australia for a decade and unable to reunite with his wife and children during this time. By contrast, Mohammed fled Afghanistan due to his Hazara ethnicity and came to Australia by plane on a tourist visa in 2016. As Mohammad arrived by plane on a valid visa, he was able to apply for a permanent protection visa immediately. His visa application was initially refused by the Department, however he was able to seek review before the AAT with full merits review rights. In 2019, the Tribunal confirmed that Mohammad was owed protection and remitted his matter to the Department. Mohammed was granted a permanent protection visa and he was able to sponsor his wife and children to live in Australia. |
Temporary protection is harmful because it creates constant uncertainty and refugees are forced to live in limbo.
Australia’s temporary protection regime is also contrary to international law, which provides that temporary protection should only be used in rare circumstances, generally in situations of mass movements of people seeking asylum when individual refugee status determination is impracticable.
By contrast, Australia’s temporary protection regime exists solely on the basis that people arrived in Australia without a visa – this is not a legitimate reason to deny permanent protection to refugees. Further, Australia’s temporary protection regime risks breaching international human rights law by denying refugees their right to seek safety and live with dignity₁₉.
Recommendation 3: Abolish temporary protection visas and provide permanent protection to all refugees.
₁₃Migration Regulations 1994 (Cth), Schedule 1, Item 1403 (3)(ba)(i) and Item 1404 (3)(ba)(i).
₁₄ Migration Regulations 1994 (Cth), Schedule 1, Item 1401.
₁₅Senate Legal and Constitutional Affairs Committee, Inquiry into the Administration and Operation of the Migration Act 1958 (Cth), 2006, https://www.aph.gov.au/Parliamentary_Business/Committees/Senate/Legal_and_Constitutional_Affairs/Completed%20inquiries/2004-07/migration/report/index.
₁₆ Australian and New Zealand Journal of Public Health, Killedar, A & Harris, P, Australia’s refugee policies and their health impact: a review of the evidence and recommendations for the Australian Government, Volume 4, Issue 41, https://onlinelibrary.wiley.com/doi/full/10.1111/1753-6405.12663; Momartin S, Steel Z, Coello M, Aroche J, Silove DM, Brooks R. A comparison of the mental health of refugees with temporary versus permanent protection visas, Med J Aust, 2006, 185(7), https://pubmed.ncbi.nlm.nih.gov/17014402/.
₁₇ Human Rights and Equal Opportunity Commission, A last resort? National Inquiry into Children in Immigration Detention, 2004, https://humanrights.gov.au/sites/default/files/content/human_rights/children_detention_report/report/PDF/alr_complete.pdf.
₁₈ Australian Human Rights Commission, Lives on Hold: Refugees and asylum seekers in the ‘Legacy Caseload, 2019, https://humanrights.gov.au/sites/default/files/document/publication/ahrc_lives_on_hold_2019.pdf.
₁₉ UNSW Sydney, Andrew & Renata Kaldor Centre for International Refugee Law, Temporary Protection Visas and Safe Haven Enterprise Visas, https://www.kaldorcentre.unsw.edu.au/publication/temporary-protection-visas.
The defunding of free legal representation to people seeking asylum has contributed to unfair and ineffective visa processing. Since 2014, successive governments have whittled down funding and since August 2022 there has been no government-funded legal assistance for protection visa applicants₂₀.
The lack of free legal assistance to people seeking asylum has had a devastating impact on their ability to engage with the complex protection visa application process due to barriers including literacy and language skills, poor mental health and isolation from community support, especially for people in immigration detention.
Legal representation is critical to people seeking asylum having a fair opportunity to explain their protection claims. People seeking asylum are seven times more likely to have a positive outcome at review stages if they are represented by a lawyer₂₁, which is unsurprising given the legal complexities in seeking merits and judicial review.
Case Study Zahra fled Pakistan to escape harm from her abusive husband and her family because she wanted to separate from her husband. Zahra sought asylum in Australia and applied for a protection visa in 2016. Her case was allocated to a male Department delegate. During Zahra’s Department interview, she did not feel comfortable disclosing her protection claims to a man and did not know that she could ask to be interviewed by a female delegate. Zahra also did not know the legal definition of a refugee and thought that saying she did not feel safe in Pakistan would be sufficient to be granted a protection visa. She was also unaware that text messages from her family threatening to harm her would be useful evidence for her case. In 2019, the Department refused Zahra’s protection visa application. Zahra’s friend connected her with the ASRC where she received legal advice about her situation. Zahra was assisted to seek review at the AAT and she had legal representation at her hearing. In 2023, the AAT found that Zahra was owed protection obligations and remitted her matter to the Department, and she was granted a protection visa. If Zahra had had legal representation at the Department stage, it is very likely she would have been granted a protection visa before 2019 and avoided an additional four years of seeking asylum. |
Without legal assistance, people seeking asylum cannot effectively engage in the refugee status determination process, which increases unfair outcomes and creates a high risk of refoulement (i.e. return to a country where they face persecution) with devastating consequences. The risk is particularly great for those facing barriers to access to justice, including women fleeing gender-based violence, people with serious health issues, people experiencing poverty, people in detention, and people who speak languages other than English.
Also, a lack of legal representation results in inefficient visa processing and a strain on the Department, review bodies and courts’ resources as greater numbers of people seek review of incorrect and unlawful Department and merits review decisions.
Recommendation 4: Provide government-funded legal representation to people seeking asylum throughout the refugee status determination process.
₂₀ Settlement Services International, Immigration Advice and Application Assistance Scheme (IAAAS), 2022, https://www.ssi.org.au/services/newcomers-refugees-and-migrants/iaaas.
₂₁ The Conversation, How refugees succeed in visa reviews: new research reveals the factors that matter, 10 March 2020, https://theconversation.com/how-refugees-succeed-in-visa-reviews-new-research-reveals-the-factors-that-matter-131763.
How to achieve change
The following are recommendations on how ASRC’s policy recommendations could be enacted by the current government. However, there are many ways to achieve justice and any pathway to achieve humane and moral treatment of people seeking asylum should be embraced.
People seeking asylum as part of the Legacy Caseload have been denied justice and the ability to rebuild their lives for a decade. During this time mechanisms to ensure permanent protection have been presented, including the Kaldor Centre’s ‘’Temporary Protection in Australia: A reform proposal.’’
Thankfully there are existing systems in place to provide refugees in the Legacy Caseload with permanent visas, with only minor amendments. When the Rudd Government last abolished TPV a new permanent visa was created, the Resolution of Status (Class CD) Visa (RoSV). This RoSV still exists and offers a clear way to rectify the years of harm.
For those who hold a TPV/SHEV, an amendment to Migration Regulations 1994 (Cth) r 2.07AQ(3) 45AA and a bar lift would allow TPV/SHEV to be taken as automatic applications for RoSV.
For those still in the application process amending regulation 45AA would allow them to have their application converted to bean RoSV or PPV application.
For people failed by Fast Track, the government could lift the bar to permit them to apply for RoSV or PPVs.
Outside of the ‘Legacy Caseload’, there is an urgent need for systemic reforms of the refugee determination process. These include but are not limited to legislative change to ensure legal representation, removal of discriminatory policies as well as timeframes on decision marking and responses to applications.
There is also an urgent need to abolish the IAA and substantially reform or reconstitute the AAT to ensure merit-based appointments and efficient processing.
The Minister of Home Affairs can also replace Direction no. 80, ensuring that people seeking asylum can reunite with their families.
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