The latest hurdles for people seeking asylum in Australia

People seeking asylum who came to Australia by boat between August 2012 and December 2013 arrived expecting to be able to apply for protection, but have instead been tossed around in the frequently changing policies of refugee protection in Australia.  

The latest shift in goalposts will mean that despite waiting years for an opportunity to apply for a substantive visa, many will be forced to lodge their protection claims in a hurry and without legal assistance.

For several years, the nearly 25,000 people in this cohort were unable to apply for a visa because the Migration Act places a bar precluding people who have come to Australia by boat from making any visa application without the Minister for Immigration’s permission. 

In December 2014, the passage of the Migration and Maritime Powers Legislation Amendment (Resolving the Asylum Legacy Caseload) Act 2014 provided that people in this cohort would be able to apply for only temporary forms of protection. The Kaldor Centre and many others made submissions highlighting the negative effects of temporary protection on the mental health of refugees, who are left in a state of extended limbo. Despite this, the bill came into force reinstating three year Temporary Protection Visas (TPVs) and creating a new five year Safe Haven Enterprise Visa (SHEV).  It also introduced a ‘fast-track’ processing policy which provides more limited procedural safeguards and appeal rights in determining refugee claims for this caseload. 

This legislative change came just months after the government announced that it was cutting government funded legal assistance for people who arrive in Australia by boat.  A small number of people who are considered most vulnerable (such as unaccompanied minors) can still receive government-funded assistance with their asylum applications under the Primary Application Information Service (PAIS) but for most the only option is to seek pro bono legal assistance. 

Refugee legal centres scrambled to fill the gap. These services were pushed to capacity when, from May 2015 onwards, the Department of Immigration and Border Protection started issuing letters to people in this cohort advising them of the Minister’s decision to ‘lift the bar’ to allow them to apply for a TPV or SHEV. With limited resources, legal centres were simply unable to provide assistance to all those who needed it within the 90 day time frame. In practice, the Department allowed people on a legal centre waiting list an extension to apply.  

In the last few weeks, those waiting to apply have been sent letters warning that if they if do not lodge an application within 60 days – or 30 or 14 days in subsequent letters – their access to Medicare and government Status Resolution Social Support payments will be discontinued.  In addition, the letters warn that delay may preclude the grant of another bridging visa, which may result in detention and deportation. The Department will no longer accept being on the waiting list as a reason to extend the deadline to lodge an asylum claim.  

The legal sector is ramping up efforts to raise funds in the desperate hope of being able to provide assistance to as many people as possible within the given timeframes.

Why is legal assistance so critical?

First, it is a long, complicated form. The SHEV form and TPV form are both over 40 pages long and contain complex legal terms. Applicants need to understand and complete the form in English, which is not usually their first language. The application requires a list of all family members and their date and place of birth, every place of residence and country travelled to over the last 30 years, and detailed employment and education records. This information may be hard to remember, and may not be officially recorded in applicants’ home countries. Applicants may need time and assistance to gather the relevant details, or explain any omissions.

Secondly, applicants are expected to give a full account of their experience, and any inconsistency between what is written in their application and their arrival interview more than four years ago can be seen as evidence of a fabricated story.  For many, their past experiences are difficult to recall and traumatic to retell. Trauma experienced in their home country is compounded by the mental distress caused by detention, delay and uncertainty in Australia, as well as the fear of a negative outcome. Support from a trained legal representative can be vital in assisting people to articulate their claims for protection in these circumstances.

The third reason why legal assistance is so important is the limited appeal processes of the fast-track system.  An applicant can appeal an adverse decision to the Immigration Assessment Authority (IAA), a body established specifically to review failed fast-track applications.  This process is different from the usual appeal process to the Migration and Refugee Division of the Administrative Appeals Tribunal. Instead of having an opportunity to appear before the Tribunal, the IAA will 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.  According to the Department: ‘if you do not give us all of your protection claims and we refuse your application, you might not have another chance to provide these claims’.

And finally, legal assistance is critical because the consequences of an adverse decision are dire.  A refugee cannot return home for fear of persecution or serious harm. To impose tight timeframes and deny legal assistance decreases an applicant’s chance to make a successful claim for protection, and increases the risk of Australia breaching its international legal obligation not to return a person to harm. 

For more information, see the Kaldor Centre factsheets on Legal assistance for asylum seekers, Temporary Protection Visas and Safe Haven Enterprise Visas, ‘Fast tracking’ refugee status determination, Refugee status determination in Australia.

How you can help?

If you are able to offer support to the legal services on the front line, please contact: NSW: RACS, Victoria: Refugee Legal, Asylum Seeker Resource Centre, WA: Humanitarian Group SA: RASSA Tas: RLTAS or your local legal support agency for people seeking asylum.