Changes to what constitutes a ‘character concern’ - and the consequences for people who have had their visas cancelled under character grounds – quietly passed in February when the Australian parliament resumed for two weeks with attention focussed on energy policy and party vote-preference deals in the Western Australia.
As part of the Kaldor Centre’s series of Legislative Briefs, Khanh Hoang explains The Migration Amendment (Character Cancellation Consequential Provisions) Act 2017 (Cth). He outlines key issues including: procedural fairness concerns; the potential for double punishment; lack of disclosure of information to the visa holder; and ability to seek judicial review.
Refugee status determination in Australia
This factsheet describes the refugee status determination (RSD) process in Australia. Currently, only asylum seekers who arrive with a valid visa, usually by plane, may access this process. Asylum seekers who arrive by boat and do not have a valid visa are no longer entitled to access the RSD process described in this factsheet. Instead, since 1 June 2013, all unauthorised maritime arrivals (as they are termed in the Migration Act 1958 (Cth)) are barred from applying for a protection visa, unless the Immigration Minister exercises a personal, non-compellable discretion to allow them to do so (known as ‘lifting the bar’).1 Previously, if the Minister chose to ‘lift the bar’, the process described in this factsheet applied. However, a new ‘fast tracking process’ now applies to asylum seekers who arrived irregularly (that is, without a valid visa) between 13 August 2012 and 1 January 2014. This process is described in our ‘Fast tracking’ factsheet.
Authors: Dr Joyce Chia (Senior Research Associate), Alice Drury (volunteer)
- 1. This is the date the relevant provisions came into effect: see Migration Amendment (Unauthorised Maritime Arrivals and Other Measures) Act 2013 Sch 1, items 10–14; ‘Migration Amendment (Unauthorised Maritime Arrivals and Other Measures) Commencement Proclamation 2013’ (30 May 2013). Previously, this bar applied to ‘offshore entry persons’ who arrived on an ‘excised’ territory, which included most of Australia’s islands.
- 2. Department of Immigration and Border Protection, ‘Asylum Trends - Australia 2012-13’ (November 2013) 6–12.
- 3. See, e.g., United Nations High Commissioner for Refugees, ‘Handbook on Procedures and Criteria for Determining Refugee Status under the 1951 Convention and the 1967 Protocol Relating to the Status of Refugees’ (December 2011) [189–191]; United Nations High Commissioner for Refugees, ‘Procedural Standards for Refugee Status Determination under UNHCR’s Mandate’ (September 2005); ‘Global Consultations on International Protection/Third Track: Asylum Processes (Fair and Efficient Asylum Procedures)’ (EC/GC/01/12, 31 May 2001) ; United Nations High Commissioner for Refugees, ‘Building In Quality: A Manual on Building a High Quality Asylum System’ (September 2011); Executive Committee of the United Nations High Commissioner for Refugees, ‘Determination of Refugee Status’ (EXCOM Conclusions No. 8 (XXVIII), 12 October 1977); Executive Committee of the United Nations High Commissioner for Refugees, ‘Conclusion on the Provision on International Protection Including Through Complementary Forms of Protection’ (EXCOM Conclusions No. 103 (LVI), 7 October 2005); Executive Committee of the United Nations High Commissioner for Refugees, ‘Conclusion on Local Integration’ (EXCOM Conclusions No. 104 (LVI), 7 October 2005); Executive Committee of the United Nations High Commissioner for Refugees, ‘Conclusion on Refugees with Disabilities and Other Persons with Disabilities Protected and Assisted by UNHCR’ (EXCOM Conclusions No. 110 (LXI), 12 October 2010).
- 4. Guy S Goodwin-Gill and Jane McAdam, The Refugee in International Law (Oxford University Press, 3rd ed, 2007) 51.
- 5. This is the effect of ss 13 and 14 of the Migration Act 1958 (Cth).
- 6. Migration and Maritime Powers Legislation Amendment (Resolving The Asylum Legacy Caseload) Act 2014 (Cth) Sch 5 item 10. This is due to come into effect on a date to be proclaimed.
- 7. The Act only specifies this expressly in relation to the complementary ground, but the definition of ‘owes protection obligations’ in relation to the Refugee Convention ground also excludes these categories, as they reflect Article 1F of the Refugee Convention: see NAGV and NAGW (2005) 222 CLR 161, –.
- 8. Migration Regulations 1994 (Cth) Sch 2, its 866.223–866.225.
- 9. Migration Act 1958 (Cth) s 58. The interview is not required by law but is general practice.
- 10. Department of Immigration and Border Protection, Annual Report 2013-2014, ‘Protection visas (onshore)’. Note that these figures include applications from irregular arrivals. The Department has stated that the difference in processing times between 2012–13 and 2013–14 is due to an increased number of applications, and the prioritisation (pursuant to Ministerial Direction 57 of July 2013) of applications by asylum seekers who arrived with a valid visa.
- 11. Migration Act 1958 (Cth) s 411.
- 12. Migration Act 1958 (Cth) s 420.
- 13. Refugee Review Tribunal, The Review Process (July 2013) 1; Migration Review Tribunal and Refugee Review Tribunal, Annual Report 2011–12, 6.
- 14. See, e.g., Garry Downes, ‘Tribunals in Australia: Their Roles and Responsibilities’ (2004).
- 15. Migration Act 1958 (Cth) s 415.
- 16. Angela MacDonald, ‘Merits Review of Refugee Status Decision Making’ (Speech delivered at Global Manager Refugee and Humanitarian Conference, Sydney, 15 March 2012) 3.
- 17. Migration Act 1958 (Cth) s 415.
- 18. Migration Review Tribunal and Refugee Review Tribunal, Our Role and Services. See generally Drake v Minister for Immigration and Ethnic Affairs (1979) 24 ALR 577, 589.
- 19. Attorney-General (NSW) v Quin (1990) 170 CLR 1, 35-6.
- 20. Migration Review Tribunal and Refugee Review Tribunal, Annual Report 2013-2014, Part 3.
- 21. Migration Act 1958 (Cth) s 424.
- 22. Migration Act 1958 (Cth) s 411.
- 23. Migration Act 1958 (Cth) s 476
- 24. Migration Act 1958 (Cth) s 476A.
- 26. Migration Act 1958 (Cth) s 417
- 27. According to the latest Ministerial Intervention Statistics published by the Department of Immigration and Citizenship for the period of 2012-2013 (July-December), of the 978 applications for intervention under section 417 of the Act, 209 resulted in the granting of a visa.