The Kaldor Centre Data Lab publishes regularly updated data on Australia’s refugee status determination procedures. The data currently covers review at the Administrative Appeals Tribunal and Immigration Assessment Authority, as well as judicial review at the Federal Circuit and Family Court.
The Kaldor Centre Data Lab looks at key steps in the legal process, covering the Administrative Appeals Tribunal (AAT), the Immigration Assessment Authority (IAA) and judicial review by the Federal Circuit and Family Court. When interpreting the data, it's important to understand the different roles played by the courts and tribunals.
When people seeking asylum arrive and claim protection in Australia, their application for a protection visa is assessed by the Department of Home Affairs.
If the person seeking asylum is unsuccessful, they can seek review at the AAT, although if they have arrived by boat they may not have this option (see note below).
The AAT reassesses the merits of the case and tribunal members can decide to issue a visa.
If they decide not to, an asylum seeker can seek judicial review at the Federal Circuit and Family Court.
The Court can only deal with the narrow question of whether the AAT made a serious legal error in reaching its decision. It does not have the power to issue visas but can only send back the matter to the AAT for reconsideration.
Merits review is a process where an independent person or body ‘stands in the shoes’ of a government decision-maker and reviews whether the decision was fair, and whether the decision-maker took into account all relevant facts. Merits review is available for most government decisions, including decisions to deny an asylum seeker’s application for a protection visa.
However, asylum seekers in the legacy caseload are only able to seek merits review through something called the ‘fast track process’. While decisions to deny a protection visa are usually reviewed by the Administrative Appeals Tribunal (AAT), the legacy caseload must seek review in a tribunal called the Immigration Assessment Authority (IAA). The IAA has much more limited powers than the AAT.
Some asylum seekers within the legacy caseload are denied access to merits review altogether. They are known as ‘excluded fast track applicants’. A person will be an excluded fast track applicant if they have been denied protection elsewhere, or if Minister believes they have submitted a bogus documents or that their claim is manifestly unfounded. The Minister may also exclude classes of people within the legacy caseload from access to merits review.
For more detail about the process for people in the so-called ‘legacy caseload’, see ‘What happens when a TPC or SHEV application is rejected’ in the Resources section of our series, ‘Temporary’.