The process enacted in the Migration and Maritime Powers Amendment (Resolving the Asylum Legacy Caseload) Act 2014 is quite different from what was originally proposed. The Act effectively divides asylum seekers into three groups, with a different process for each. Two of these groups – fast track applicants and excluded fast track applicants – are subject to fast tracking. The third group comprises all other asylum seekers (essentially, asylum seekers who have arrived in Australia on a valid visa), who continue to have access to the ordinary refugee status determination (RSD) process. For more information on the ordinary process, see our Refugee Status Determination factsheet.
Fast track applicants
The definition of ‘fast track applicant’ is set out in the legislation. The term includes all unauthorised maritime arrivals (being those who have arrived by boat without a valid visa) who arrived between 13 August 2012 and 1 January 2014, and were not taken to Nauru or Papua New Guinea for offshore processing, provided that the Minister has allowed them to apply for a protection visa and the person has made a valid application. The Minister can also extend the definition to other classes of asylum seekers by a legislative instrument.
Fast track applicants do not have access to the Migration and Refugee Division of the Administrative Appeals Tribunal (AAT), which replaced the Migration Review Tribunal-Refugee Review Tribunal from 1 July 2015. Instead, applicants who receive a negative decision are referred to a newly established body, the Immigration Assessment Authority (IAA). The IAA is an independent office within the Migration and Refugee Division of the AAT, and comprises the Principal Member of the Migration and Refugee Division, a Senior Reviewer and other Reviewers. The intention is that this is a more limited form of review, generally without an interview and with no new information allowed (see below). Fast track applicants will usually also continue to have access to judicial review. However, the Minister for Immigration has the power to issue a ‘conclusive certificate’ which prevents an initial decision from being changed or reviewed.
Excluded fast track applicants
‘Fast track applicants’ can become ‘excluded fast track applicants’ if they have:
- come from ‘safe third countries’ or have ‘effective protection’ in another country;
- previously entered Australia and made a protection visa application which was refused or withdrawn;
- made an unsuccessful claim for protection in another country;
- made an unsuccessful claim for protection to the United Nations High Commissioner for Refugees (UNHCR);
- provided ‘without reasonable explanation’ a ‘bogus document’ in support of the application; or
- made, in the opinion of the Minister, a ‘manifestly unfounded’ claim.
The Minister can also expand the grounds on which someone may be designated an ‘excluded fast track applicant’ through a legislative instrument.
A ‘manifestly unfounded’ claim is defined in the Act. It includes claims that have no ‘plausible or credible basis’; those based on country information that cannot be substantiated by any objective evidence; and those ‘made for the sole purpose of delaying or frustrating’ removal. The Supplementary Explanatory Memorandum to the Act notes that the amendment to the Migration Act concerning manifestly unfounded claims ‘reflects an interpretation of this concept that is commensurate with the United Nations High Commissioner for Refugees’ position on responding to manifestly unfounded applications.’
Excluded fast track applicants will not have access to any form of merits review, and they will only have access to the more limited form of judicial review by the courts. The Immigration Department will conduct an ‘internal legal check’, but this is a quality assurance process rather than a review of the merits of the claim. The Minister may, however, allow specified excluded fast track applicants to have access to the same review process as fast track applicants through a legislative instrument.
How will the review by the IAA work?
Review by the IAA is different from review by the Migration and Refugee Division of the AAT (MRD-AAT) in a number of ways. First, while generally an applicant has the opportunity to appear before the MRD-AAT, the IAA will instead conduct a review only ‘on the papers’ (by reviewing the existing documents before the Department). While the IAA can ask for new information at an interview, it can only use such information in limited circumstances, as described below.
The IAA can only consider new information in ‘exceptional circumstances’, and if either the new information could not have been provided at the time of the initial decision, or it is ‘credible personal information’ which, had it been known, may have affected the initial consideration of the claim.
The term ‘exceptional circumstances’ is not defined by the Act. The Explanatory Memorandum to the Bill indicates that this term is intended to give a broad discretion to the IAA, but may include a material change in circumstances after the original decision was made (for example, rapid deterioration of conditions in the country of origin), or evidence of ‘significant torture and trauma’ which, if known, would have affected the consideration of the claim. Examples of circumstances that would not justify consideration include: information available at the primary stage that was ‘not presented for unsatisfactory reasons’; a ‘general misunderstanding or lack of awareness of Australia’s processes and procedures’; or ‘a change in personal circumstances within the control of the applicant’.
Third, whereas an applicant would usually apply for review by the MRD-AAT, all unsuccessful fast track decisions will automatically be referred by the Minister to the IAA, and relevant material will be provided to the IAA by the Secretary of the Department at or around the time of referral.
Fourth, a new Code of Procedure will be introduced by regulation to codify the IAA’s obligations to afford applicants natural justice and set out timeframes for review. It is expected that these timeframes will reduce the time allowed for applicants to respond to questions or clarify matters raised by the Department and/or the IAA. The timelines have not yet been made available.
The Principal Member of the Migration and Refugee Division of the AAT can issue practice directions for the IAA, and identify decisions that are to be followed unless clearly distinguishable (‘guidance decisions’). Similar provisions were introduced for the Migration and Refugee Division of the AAT in the Migration Amendment (Protection and Other Measures) Act 2015 (Cth). These measures are intended to expedite the processing of applications.
The fast tracking procedure before the IAA will be affected by new requirements introduced in the Migration Amendment (Protection and Other Measures) Act 2015 (Cth). This Act has the effect of requiring an asylum seeker to provide full and complete information at the beginning of the RSD process, and will penalise late evidence. These provisions, combined with the limits on considering new evidence on appeal, will significantly distinguish the IAA procedure from the AAT procedure.