Applying for Refugee Status

This paper addresses the definition of a refugee, the offshore visas and onshore visas. The information is current to 29 July 2003.

1. International definition
1. (a) Parts of the definition
1. (b) Cessation and Exclusion provisions
2. Australia’s Refugee & Humanitarian Program
3. Offshore applications
3. (a) Subclasses 200 – 204
3. (b) Subclasses 447 & 451
4. Onshore applications
4. (a) Subclass 785
4. (b) Subclass 866

The most important right of a refugee is the right not to face refoulement to a country where they may be persecuted because of their race, religion, nationality, membership of a particular social group, or political opinion. (Article 33, 1951 Convention)

1. International definition
Refugee law is part if International Human Rights Law. There are many Human Rights Conventions and the main ones applicable to interpreting refugee law and to which Australia is a signatory are:

• Universal Declaration of Human Rights
• UN Convention and 1967 Protocol relating to the Status of Refugees
• International Covenant on Civil and Political Rights
• International Covenant on Economic, Social and Cultural Rights
• Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment
• The Declaration of the Rights of Child
• The International Convention on the Elimination of All Forms of Racial Discrimination

These Conventions and Treaties are part of what is known as human rights law. It is against this background that human rights violations and persecution can be measured.

There are several definitions of ‘refugee’. These include the UN definition, the definition from the Organisation of African States (OAS) and the Organisation of American Unity (OAU). The United Nations definition is accepted internationally and used in Australia. The definition is found in the1951 UN Convention and 1967 Protocol relating to the Status of Refugees.

Article 1A(2)

“ refugee is someone who 'owing to a well founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable, or owing to such fear, is unwilling to avail himself of the protection of that country;
or who, not having a nationality and being outside the country of his former habitual residence, is unable or, owing to such fear, is unwilling to return to it.”

Clearly such terms as “economic refugee” or “environmental refugee” are meaningless in terms of the 1951 Convention. There may be a combination of factors causing someone to flee, some of which may be economic or poverty induced.

The determination of refugee status is a future test – does this person face a well-founded fear of persecution if they were to return to their country. Experience of past persecution is only relevant in so far as it may assist in assessing the likelihood of future persecution.

The United Nations High Commissioner for Refugees (UNHCR) is the UN agency with the mandate for the care of refugees. It is estimated by the UNHCR that in the world there are over 20 million refugees, and 25 million internally displaced people.

1. (a) Parts of the definition

1(a)(i) Alienage

• Must be outside country of nationality, or former habitual residence
• Must be tested against all countries where a citizen or right of residence
• Statelessness (test against former habitual residence)
• Residency rights and effective protection (s36 (3)) MIMA v Applicant C [2001] FCA 1332
• Multiple nationality – Koe v MIEA (1997) 78 FCR 289 (East Timorese), MIMA v Thiyagarajah (1997) 151 ALR 685 (Sri Lankan with French nationality)
  SRPP v MIMA [2000] AATA 878 (East Timorese case)

1(a)(ii) Well-founded fear

Chan v MIEA (1989) 169CLR379 (Chan Case) – ‘real chance test’

1(a)(iii) Persecution

Hierarchy of human rights (Hathaway model)
The basis for determining whether certain acts are persecutory may be determined by testing whether the activity in question is a breach of a human right. Professor Hathaway, who, in discussing persecution, states that:

“...persecution may be defined as the sustained or systematic violation of basic human rights, demonstrative of a failure of state protection.” (Hathaway 1991, pp 104-105)

Some examples of basic human rights include:

The Universal Declaration of Human Rights (UDHR) states in article 3:

“Everyone has the right to life, liberty and security of person”

and in article 5:

“No one shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment”

and in article 9:

“No one shall be subjected to arbitrary arrest, detention or exile”.

The International Convention on Civil and Political Rights (ICCPR) also provides core human rights. The Convention provides for no derogation from articles 6, 7 and 8, even in times of emergency (ICCPR 1966, article 4(1)). Article 7 provides:

“No one shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment.”

In discussing the issue of the meaning of the term ‘persecution’, the High Court stated in Chan v MILGEA (1989) 169 CLR 379 at pp 429-430:

“...The term ‘persecuted’ is not defined by the Convention or the Protocol. But not every threat of harm to a person or interference with his or her rights for reasons of race, religion, nationality, membership of a particular social group or political opinion constitutes ‘being persecuted’. The notion of persecution involves selective harassment. It is not necessary, however, that the conduct complained of should be directed against a person as an individual. She may be ‘persecuted’ because she is a member of a group which is the subject of systematic harassment: Nor is it a necessary element of ‘persecution’ that the individual should be the victim of a series of acts. A single act of oppression may suffice. As long as the person is threatened with harm and that harm can be seen as part of a course of systematic conduct directed for a Convention reason against that person as an individual or as a member of a class, she is ‘being persecuted’ for the purposes of the Convention. The threat need not be the product of any policy of the government of the person's country of nationality. It may be enough, depending on the circumstances, that the government has failed or is unable to protect the person in question from persecution: Goodwin-Gill, op. cit., at p 38;

Moreover, to constitute ‘persecution’ the harm threatened need not be that of loss of life or liberty. Other forms of harm short of interference with life or liberty may constitute ‘persecution’ for the purposes of the Convention and Protocol. Measures ‘in disregard’ of human dignity may, in appropriate cases, constitute persecution: Weis, ‘The Concept of the Refugee in International Law’, Journal du Droit International, (1960), 928, at p 970. Thus the UNHCR Handbook asserts that serious violations of human rights for one of the reasons enumerated in the definition of refugee would constitute persecution: par.151.”

MIMA v Ibrahim (2000) 74 ALJR 1556, discusses ‘selective harassment’. This case stresses that when interpreting the definition, do not look for ‘glosses’ but go to the definition itself.

This definition was amended in Australian onshore cases by the Migration Legislation Amendment Act (No6) 2001. This Act operates from 2 October 2001. The Act inserted a definition of persecution in s91R. The list of examples is inclusive. They appear to be drawn from the human rights models, or at least the new definition does not preclude the human rights model of Hathaway.

This new definition has a retrospective effect as it applies to all current applications, including those before the RRT.

Issues to consider regarding persecution:

• Agents of persecution
  Can the Government adequately protect people from militia or paramilitary groups, death squads, and vigilante groups
• Prosecution or persecution? (WAEZ of 2002 v MIMIA [2002] FCAFC 341 (8 November 2002)

Is the treatment worse than others would face for the same reason due to the Convention nexus (see below)

• Deserters and Conscientious objectors
• Cumulative persecution

1(a)(iv) Nexus to the Convention

A refugee must establish their fear is due to one or more of five reasons set out in the Convention.

• Race
  - A broad social meaning, identifiable ethnicity
  - Race was considered in the High Court in Commonwealth of Australia et al v Tasmania et al (1983) 46 ALR 625 (Tasmanian Dams’ Case) by Brennan J at 792-793
  - Federal Court decision of Gunaseelam (Unreported, French J, 9 May 1997)

• Religion
  - ICCPR Article 18, Freedom of religious thought and practice.
  - No coercion to adopt a religion of belief.
  - Restrictions only to protect public order and freedoms of others (Article 18(3))
  - Woudneh v MILGEA (Unreported Gray J, 16 September 1988)

• Nationality
  - Broad meaning, can include ethnic and linguistic groups

• Particular Social Group
  - A & B v MIEA (1997) 142 ALR 331 (Applicant A Case)
  - Chen Shi Hai v MIMA (2000) 170 ALR 553 (‘black child’ from PRC)
  - MIMA v Khawar [2002] HCA 14 (11 April 2002) (women in Pakistan)
  - Examples include
  • the family (Chan’s Case, Shtjefni)
  • homosexuals (MMM v MIMA (1998) 90 FCR 324), Khanmeeri v MIMA [2002] FCA 625
  • disabled
  • women subject to dowry arrangements
  • Able-bodied Afghan men (Applicant M v MIMA [2001] FCA1412, but compare Mahmoudi v MIMA [2001] FCA1090, not accepted here.

In discussing persecution and social group, McHugh J states:

"The only persecution that is relevant is persecution for reasons of membership of a group which means that the group must exist independently of, and not be defined by, the persecution."{A & B v MIEA (1997) 71 ALJR 381}

His honour also stated:

"Nevertheless, while persecutory conduct cannot define the social group, the actions of the persecutors may serve to identify or even cause the creation of a particular social group in society. Left-handed men are not a particular social group. But, if they were persecuted because they were left-handed, they would no doubt quickly become recognisable in their society as a particular social group. Their persecution for being left-handed would create a public perception that they were a particular social group. But it would be the attribute of being left-handed and not the persecutory acts that would identify them as a particular social group."

and later;

"A group may qualify as a particular social group, however, even though the distinguishing features of the group do not have a public face. It is sufficient that the public is aware of the characteristics or attributes that, for the purposes of the Convention, unite and identify the group. In Roman times, for example, Christians were a particular social as well as religious group although they were forced to practise their religion in the catacombs. If the homosexual members of a particular society are perceived in that society to have characteristics or attributes that unite them as a group and distinguish them from society as a whole, they will qualify for refugee status. Nor is it necessary that the group should possess the attributes that they are perceived to have. Witches were a particular social group in the society of their day, notwithstanding that the attributes that identified them as a group were often based on the fantasies of others and a general community belief in witchcraft."

European and Canadian jurisprudence includes women from Islamic countries who do not accept dress codes. There is dispute as to whether ‘women’ per se are a particular social group.

The persecution cannot create the group.

The Migration Legislation Amendment Act (No6) 2001 provides a limit on the definition of ‘family’ for the purposes of ‘particular social group’ is s91S. In SADR v MIMIA [2002] FCA 1102, Merkel J upheld the validity of the provision and discussed the operation of the section.

“Thus, while a fear of family persecution arising from or associated with persecution for a non-convention reason may be excluded, persecution threatened against family members as such, arising from or associated with persecution of one of the family members for a Convention reason (eg political, racial, religious or membership of a social group) may still constitute persecution of the other family members because of their membership of the persecuted family, as a particular social group. …

Thus, where a family member’s fear of persecution has arisen because another family member’s criminal debts have not been paid, or because a blood feud has arisen from or been associated with the unlawful act of another family member, that fear of persecution and persecution is to be disregarded. (para 23-24)”

• Political Opinion
  - Wide constructions, right to political opinion is in ICCPR article 19.
  - Can be imputed (Akyaa v MIEA Unreported, Gummow J, 5 May 1987)

1(a)(v) – Refugee sur place claims
Can be due to events occurring in the country of origin or in country where residing.

Sole purpose (or bona fides) test:
Somaghi v MILGEA (1991) 102 ALR 339
Heshmati v MILGEA (1991) 102 ALR 367

Followed in Li and Liu v MILGEA (Full Federal Court, 13 April 1995)
But not in MIMA v Mohammed [2000] FCA 576 (5 May 2000).

This was amended in the Migration Legislation Amendment Act (No6) 2001 with the insertion of s91 (3) to effectively include a bona fides test from 2 October 2001. This was upheld as valid by Mansfield J in SAAS v MIMIA [2002] FCA 726.

1. (a)(vi) Internal Flight Alternative or Relocation principle

Reasonableness test, Randawa v MILGEA (1994) 124 ALR 265:

“If it is not reasonable in the circumstances to expect a person who has a well-founded fear of persecution in relation to the part of country from which he or she has fled to relocate to another part of the country of nationality it may be said that, in the relevant sense, the person’s fear of persecution in relation to that country as a whole is well-founded.” (per Black CJ, p 10 of the judgment. Beaumont J and Whitlam J concurred.)

1. (b) Exclusion provisions

The Convention Provides for the Cessation and Exclusion of certain groups of people from refugee protection:

• Voluntarily re-availing oneself of protection (Article 1C) (Rezaei v MIMA [2001] FCA1294 of 14 September 2001
• Circumstances changed in country of feared persecution (Article 1C)
• Receiving protection or assistance from UN agencies (Article 1D) (see MIMA v WABQ [2002] FCAFC 329 of 8 November 2002)
• Recognised as having rights and obligations of a national where residing (Article 1E)
• Committed a crime against peace, war crime, crime against humanity (Article 1F)
• Committed a serious non-political crime outside country of refuge (Article 1F)
• Guilty of acts contrary to purposes and principles of UN (Article 1F)

Article IC

A conceptual problem with the temporary protection visa is whether Article 1C of the Refugee Convention has even been considered. Article 1C deals with the cessation of the grant of refugee status. This occurs in six cases:

• 1C(1) Voluntary reavailment of protection of one’s country of nationality
• 1C(2) Voluntarily requiring a lost nationality
• 1C(3) Acquiring a new nationality and enjoying the protection of that new Nationality
• 1C(4) Voluntarily re-established in the country that was left
• 1C(5) Circumstances giving rise to the grant of refugee status no longer exist
• 1C(6) A person without nationality but the circumstances giving rise to the refugee grant no longer exist.

Article 1C(5) provides:

This Convention shall cease to apply to any person falling under the terms of section A if:
…
(5) He can no longer, because the circumstances in connection with which he has been recognized as a refugee have ceased to exist, continue to refuse to avail himself of the protection of the country of his nationality;

Provided that this paragraph shall not apply to a refugee falling under section A (I) of this article who is able to invoke compelling reasons arising out of previous persecution for refusing to avail himself of the protection of the country of nationality;

ExCom Conclusion 69, states that the change must be "fundamental, stable, and durable". The UNHCR Handbook discussion of Article 1C(5) provides:

"Circumstances" refer to fundamental changes in the country, which can be assumed to remove the basis of the fear of persecution. A mere possibly transitory change in the facts surrounding the individual refugee's fear, which does not entail such major changes of circumstances, is not sufficient to make this clause applicable. A refugee's status should not in principle be subject to frequent review to the detriment of his sense of security, which international protection is intended to provide.”

Professor James Hathaway notes that the cessation clause exists because:

“The Convention conceives of refugee status as a transitory phenomenon, which expires when a refugee can either reclaim the protection of her own state or has secured an alternative form of enduring protection.”

Hathaway posits a three-part test for cessation:

"the change must be of substantial political significance, in the sense that the power structure under which persecution was deemed a real possibility no longer exists. The collapse of the persecutory regime, coupled with the holding of genuinely free and democratic elections, the assumption of power by a government committed to human rights and a guarantee of fair treatment for enemies of the predecessor regime by way of amnesty or otherwise, is the appropriate indicator of a meaningful change of circumstances….

There must be reason to believe that the substantial political change is truly effective. …it ought not be assumed that formal change will necessarily be immediately effective. The formal political change must be implemented in fact, and result in a genuine ability and willingness to protect the refugee.”

the change of circumstances must be shown to be durable. Cessation is not a decision to be taken lightly on the basis of transitory shifts in the political landscape.”

At a minimum, a waiting period of twelve to eighteen months after the occurrence of the fundamental change has been advocated by the UNHCR, with most changes historically not considered durable until a period of four to five years. This is a period outside that of the life of the 785 visa.

When assessing whether a TPV holder who has applied for a subclass 866 visa is still owed protection obligations by Australia, the onus of proof is on the government to show that the cessation provisions of Article 1C(5) apply. This is accepted by DIMIA:

“The element of voluntariness in terms of the person’s return to that country is not required. For this reason, however, judgments by the protecting country about a refugee’s circumstances should not be taken lightly. The burden of proof should be on the authorities concerned, not the refugee. The changes in circumstances should be substantial and lasting.”

DIMIA notes the three requirements are that the changes be:

• substantial
• effective, and
• durable.

The Migration Legislation Amendment Act (No6) 2001 inserts a definition of ‘Non- political crime (s91T) and ‘particularly serious crime’ (s91U).

Exclusion from making an application
The Migration Act 1958 and Regulations seek to exclude certain people from making refugee applications in Australia. These are covered in subdivision AI of the Act. Those effectively excluded from making applications include:

• Certain persons covered by the Comprehensive Plan of Action (CPA)
• Persons covered by ‘Safe Third Country’ provisions
• Persons with Temporary Safe Haven visas
• Persons with access to protection from safe third countries
• S48A prevents persons from lodging a second application for a protection visa
• Persons outside the Migration Zone
• Transitory persons within the migration zone (s46B)

Decisions under article 1F give rise to an appeal to the Administrative Appeal Tribunal. Consideration of 1F in SAH and MIMIA [2002] AATA 263 (18 April 2002)

2. Australia’s Refugee & Humanitarian Program

The Program has a notional allocation of 12,000 places. This is made up of:

• Refugee 4,000 places
• Special Humanitarian program 7,000 places
• Onshore protection visas 1,000 places

3. Offshore applications
3. (a) Subclasses 200 – 204

The first five subclasses are those with the most visas allocated. There are several important matters to note about the offshore subclasses:

• no applications fees
• capped visa classes
• use of forms 681 (for nominator) and 842 (for applicant)
• must be lodged and granted offshore
• compelling reasons having regard to treatment of applicant, connection with Australia or whether another suitable country
• no right of merits review

Since the Migration Amendment (Excision from Migration Zone) (Consequential Provisions) Act 2001, a new requirement was inserted regarding failure to obtain effective protection in a third country. The provision was inserted into subclasses 200, 202 and 204. It is identical for each subclass.

‘Effective protection’ is not defined however has been discussed by the Federal Court in the cases MIMA v Thiyagarajah (1997) 151 ALR 685 and Koe v MIEA (1997) 78 FCR 289, and MIMA v Applicant C [2001] FCA 1332

Subclass 200 Refugee
Must be a refugee and therefore outside country of origin. Need support from UNHCR, ICRC or other international organization

Subclass 201 In country Special Humanitarian
Subject to persecution in home country and still resident there.

Subclass 202 Global special humanitarian
Outside home country and suffer from substantial discrimination.
Commonly for family unit members of successful protection visa holders
Special definition of dependent (reg 1.05A(2))

Subclass 203 Emergency rescue
Urgent and compelling reasons for grant

Subclass 204 Women at risk
Person of concern for UNHCR, no male relative for protection and in danger of victimization, harassment or serious abuse because of her sex.

3. (b) Subclasses 447 and 451.

These subclasses were established in the Migration Amendment (Excision from Migration Zone) (Consequential Provisions) Act 2001. The subclasses were introduced to deal with the people from the Tampa boat but have a wider application.

The amendments have inserted new terms ‘excised offshore place’; excision time’; and ‘offshore entry person’.

If an ‘offshore entry person’ were brought to Australia for medical reasons for example, they are known as a ‘transitory person’ and are ineligible from making an application for a protection visa (s46B). The Minister may permit a ‘transitory person’ to make an application where he believes it is in the public interest (s46B (2)).

Where a ‘transitory person’ is brought to Australia under s198B, then they may make an application for refugee status in certain circumstances. These are set out in section 198C and are:

• Where the applicant has resided in Australia for 6 months continuously
• The applicant may make a request to the RRT to be considered as a refugee under Article 1A
• The RRT cannot consider a case if a certificate of ‘non-cooperation’ is issued under s198D.
• If the applicant is successful, then the Minister determines which visa is granted

WAIV v MIMIA [2002] FCA 1186 upheld the validity of this provision.

4. Onshore applications
The asylum process in Australia is a two-stage process with judicial review available after merits review. Asylum seekers make an application to a Migration Officer and the application must be on the correct form (form 866). The form consists of two or three parts depending on whether there are dependents present in Australia. The form must be completed in English and all attachments must be also in English or with English translations.

People with condition 8503 (no further stay) can make an application for a Protection Visa. People who have already made an application for a protection visa are prevented from making a second application onshore by s48A. They can lodge the application if the Minister exercises his discretion in their favour. (s48B) The Minister has issued guidelines for the factors which may be relevant in the exercise of his discretion.

There is a ban on applications by ‘offshore entry persons’ in s46A.

The Department of Immigration will not provide counter advice to people trying to make applications. The Government has provided a small fund to provide ‘application assistance’. There is no longer any legal aid available to assist applicants for refugee status. In 1999/2000 there were 11,867 lodgments (3,502 by boat arrivals) and 10,173 determinations in the same year.

The subclass 786 Temporary (Humanitarian Concern) visa is for those holding the Safe Haven visa (subclasses 448 and 449). It is currently the only onshore humanitarian visa and is valid for 36 months. It must be granted onshore.

Two types of onshore refugee visas
On 20 October 1999, the Government amended the law to create two subclasses of onshore refugee applicants. Both are ‘refugees’ according to international law. Both have a right to merits review at the RRT.

Protection visas are defined by s36, set out below.

4. (a) Subclass 785
The first class of applicants who are ‘not immigration cleared’ applies for the 785 subclass visa. ‘Immigration cleared is defined in s172 of the Migration Act. These are effectively people who did not have a visa when they arrived in Australia or their visa was cancelled at the point of entry. They must be held in detention pending the decision in their application.

From 1 November 2000, a further change was made which meant that people arriving on fraudulent documents could only apply for the 785 subclass, even though they were immigration cleared. This is set out in sub- clause 866.213(3) and ‘fraudulent document’ is defined in sub-clause 866.213(4).

There is no fee for the subclass 785 application.

The subclass 785 visa only entitles them to:

• a 3 year temporary residence visa;
• no right to sponsor immediate dependent family members (spouse and dependent children);
• no right of return to Australia if they leave; and
• only allowed to apply for the 866 subclass visa for permanent residence.

The 866 subclass visa will only be granted 30 months after the grant of the subclass 785 visa.

These refugees have permission to work but no access to English language classes, not the full range of social security, no support from Migrant centres and workers must pay overseas student rates for study.

4. (b) Subclass 866
Immigration cleared cases and those who enter on genuine documents or passports apply for the subclass 866 visa which is a permanent visa. This entitles grantees to:

• permanent residence;
• English classes;
• full social security benefits;
• right to sponsor immediate family (can be under humanitarian program);
• settlement support services.

There is a $30 fee for the subclass 866 application.

A further requirement is from 27 September 2001. Applicants must pass the requirement of 866.215 regarding residence in a third country for 7 days or more and not seeking effective protection. This will affect 785 subclass holders who when applying for the 866 are applying for ‘visas a in a subclass’ so if they fail the 866 test, may get a new 785 and therefore be back waiting a further 3 years.

Types of protection visa applicants

(i) Unauthorised air arrival

• initial screening interview
• must be detained for whole process
• screened in case allocated to IAAAS provider
• DIMA interview
• Approved (785) or appeal to RRT in 7 days
• RRT hearing
• Approved (785) or rejected by RRT
• 785 subclass only

(ii) Unauthorised boat arrival

• initial screening interview
• must be detained for whole process
• screened in case allocated to IAAAS provider
• DIMA interview
• Approved (785) or appeal to RRT in 7 days
• RRT hearing
• Approved (785) or rejected by RRT
• 785 subclass only

(iii) Stowaway

• must be detained for whole process if found within 45 days of arrival or bridging visa if outside 45 days
• DIMA interview
• Approved (785) or appeal to RRT in 7 days if in detention otherwise 28 days
• RRT hearing
• Approved (785) or rejected by RRT
• 785 subclass only

(iv) Authorised arrival (has visa, false passport or false visa)

• must lodge within 45 days of arrival (12 months cumulative) to get permission to work
• DIMA interview
• Approved (785) or appeal to RRT in 28 days
• RRT hearing
• Approved (785) or rejected by RRT
• 785 subclass only

(v) Authorised (valid passport and visa, lawful in Australia)

• must lodge within 45 days of arrival (12 months cumulative) to get permission to work
• DIMA interview
• Approved (866) or appeal to RRT in 28 days
• RRT hearing
• Approved (866) or rejected by RRT
• 866 subclass

(vi) Holder of subclass 785 or 451 (lawful in Australia)

• can only apply for 866 subclass visa
• DIMA interview
• Cannot be approved for 866 if on 785 until 30 months from grant of 785 and pass 7 day effective protection test if application on or after 27 September 2001.
• Cannot be approved for 866 if on 451 until 54 months from grant of 451
• must appeal to RRT in 28 days from decision if rejected
• RRT hearing
• Approved (866) or rejected by RRT
• 866 subclass

(vii) Holder of subclass 447 (lawful in Australia)

• Can only apply for 866 if Minister decides is in the public interest
• Can apply for 785

(viii) Transitory person

• Brought to Australia under s198B
• Six months in detention continuously
• No certificate of non-cooperation under s198D
• Request to RRT for consideration under Article 1A
• Minister determines visa class (s198C)
• Otherwise ineligible to make a valid visa application (s46B)

Legislation
Section 36 of the Migration Act 1958 provides the legislative basis for the grant of Protection visas.

The provisions of s36 (3) were considered by the Federal Court in the cases of Applicant C v MIMA [2001] FCA 229 and S115/00A v MIMA [2001] FCA 540. The Court held that the ‘right’ of return is a legal right and there must be evidence before the decision maker to substantiate the statement that an applicant has a right of return. Mere assertion of the right is insufficient.

The High Court held in Re MIMA; Ex Parte Miah [2001] HCA 22, that a DIMA delegate must disclose adverse material to an applicant before making a decision. This decision is authority for the view that the common law rules of natural justice are not excluded by sections 56, 57 and 69 of the Act. This was in the context of an application to the High Court in its original jurisdiction under s75 of the Constitution.

Detention cases
A number of claimants for refugee status are in immigration detention. They are often not ‘immigration cleared’. The main detention centres are in Sydney (Villawood), Melbourne (Maribyrnong), Perth airport and Port Hedland in Western Australia and Baxter and Woomera in South Australia.

Applicants in detention are from two main groups. The first are what are termed ‘unauthorised arrivals’ or those people who arrive in Australia without a visa. Australia maintains a strict visa regime for all non citizens and it is the responsibility of carriers usually the airline staff, to check that someone has a valid visa for Australia before they board a flight.

Airlines or ships, which bring in people without valid visas face penalties known as carrier sanctions. Such persons can be ‘turned around’ by sending them back from where their flight last came. Only people who can somehow convince the immigration officer that they are a refugee will be allowed in to make an application for refugee status. This is the initial process of screening. There is no right to receive reasons for being screened in or out and there is no merits review. It is possible to delay or prevent a deportation through an injunction granted by a Federal Court judge.

People who arrive by boat without a visa are commonly referred to as ‘boat people’. They are in the same immigration position as people arriving by plane without a visa.

If the ‘unauthorised arrival’ clears this prima facie check, then they are placed in immigration detention until they are permitted to enter Australia or are deported. Many applicants are advised by smugglers to destroy passports before arrival so that they will not be deported. Whilst this prevents immediate deportation, it can create identity problems during the processing.

The other main groups of people in detention are those who have overstayed their visas or breached visa conditions, such as no work conditions. They may apply for a bridging visa whilst their case is processed however it is not automatically granted.

All persons in immigration detention who are screened in have access to a lawyer or migration agent funded by the Immigration Department through the IAAAS scheme. They can also pay for their own adviser if they wish.

(a) Applications in detention
An asylum seeker in detention must lodge their application with the immigration officer within three working days of indicating their intention to make an application. The Department can extend this with agreement however it is normally strictly maintained. This limit puts significant pressure on applicants and advisers. Advisers have to establish a rapport and trust in a short time as well as completing the forms and a statement. The usual number of cases to be completed each day during boat task forces is 2-3.

Applicants may then be interviewed though the immigration officer can move to a decision without interview. Interviews are conducted with qualified interpreters and in Villawood it may be through a video linkup between the detention centre and the migration officer. Boat cases are interviewed immediately after the applications are received in groups called taskforces.

Interviews are tape-recorded and applicants are given a copy of the interview tape at the time of the interview.

If an application were accepted, then the asylum seeker will be given a health check and must complete a security clearance by ASIO. This can delay cases for long periods. If successful, they are granted a visa and released into the community. If the application is rejected, then they have seven working days to lodge an appeal to the Refugee Review Tribunal (RRT).

(b) Asylum seekers in the community
Asylum seekers in the community have 45 days after their arrival in which to lodge an application. If they lodge the application outside the 45 days, then they will not receive permission to work on their bridging visa. Applicants who lodge within the 45 days will be granted a Bridging Visa with permission to work when their substantive visa expires. The Bridging visa criterion is at schedule 2, 010.611, and 030.212(3).

This Bridging Visa will continue until their case is completed even if it goes on appeal to the RRT.

Applicants in the community must pay an application fee of $30 at time of lodgment.

(c) Stowaways
The third classes of potential applicants are stowaways. As they have not been immigration cleared at an airport or port, they are technically unlawful and as such apply for the 785 subclass temporary visa only. The Migration Regulations provide that if they are located by immigration within 45 days of arrival in Australia, then they must be detained. Otherwise, they can receive a bridging visa. This is found in reg 2.20(6).

(d) Fraudulent document holders [sub-clause 866.213(3) and 866.213(4)]
People who arrive on fraudulent documents may still pass immigration clearance undetected. They can make an application for a protection visa and should do so within the 45 day time limit. They will be granted permission to work on a bridging visa class C provided they can establish their true identity and that they are suffering severe financial hardship. Since 1 November 2000, applications with fraudulent documents will be for the 785 subclass only.

All of the above non-detention applicants face the same process. They may be interviewed or the officer may move to a decision without interview. Non-detention cases must lodge an appeal within 28 days of the rejection of their application.

About 10% of cases are approved by the Immigration Department at the primary stage of the process. Unsuccessful applications for Protection Visas or Temporary Protection Visas have a right of merits review to the Refugee Review Tribunal (RRT)

(e) Bridging Visas
Applicants who are immigration cleared are eligible for the grant of a bridging visa. If they lodge their application within 45 days of arrival, (a cumulative count including previous visits within 12 months of lodgment), then they are eligible for a bridging visa A with permission to work. If they lodge outside this period, then they will not get permission to work. If they arrive on fraudulent documents, then they will get a Bridging Visa C and must establish financial hardship for permission to work.

Persons who are not immigration cleared must be detained if detected within 45 days of arrival. Once detained, they are not eligible for a bridging visa unless they can establish a serious medical or psychological reason for it to be granted.

Kerry Murphy © May 2003
Selected Cases

1. A & B v MIEA (1997) 142 ALR 331
2. Applicant M v MIMA [2001] FCA1412, (Applicant A Case)
3. Applicant C v MIMA [2001] FCA 229
4. Chan v MIEA (1989) 169CLR379 (Chan Case)
5. Chen Shi Hai v MIMA (2000) 170 ALR 553
6. Farajvand v MIMA [2001] FCA 795
7. Heshmati v MILGEA (1991) 102 ALR 367
8. Khanmeeri v MIMA [2002] FCA 625
9. Koe v MIEA (1997) 78 FCR 289
10. Lee v MIMIA [2002] FCAFC 305 (4 October 2002)
11. MIMA v Al Shamry [2001] FCA919
12. MIMA v Applicant C [2001] FCA 1332
13. MIMA v Eshetu (1999) 197 CLR 611
14. MIMA v Bhardwaj [2002] HCA 11
15. MIMA v Guo (1997) 191 CLR 559
16. MIMA v Ibrahim (2000) 74 ALJR 1556
17. MIMA v Khawar [2002] HCA 14
18. MIMA v Mohammed [2000] FCA 576
19. MIMA v Rajamanikkam [2002] HCA 32
20. MIMA v Shtjefni [2001] FCA1323
21. MIMA v Thiyagarajah (1997) 151 ALR 685
22. MIMA v Yusuf [2001] HCA 30
23. MIMA v WABQ [2002] FCAFC 329 of 8 November 2002
24. MMM v MIMA (1998) 90 FCR 324
25. Muin v RRT; Lie v RRT [2002] HCA 30
26. NAAV v MIMIA [2002] FCAFC 228
27. Randawa v MILGEA (1994) 124 ALR 265
28. Re MIMA; Ex Parte Duraraijasingham (2000) 168 ALR 407
29. Re MIMA; Ex Parte Miah [2001] HCA 22
30. Re RRT; Ex parte Aala (2000) 75 ALJR 52
31. Rezaei v MIMA [2001] FCA 1294 of 14 September 2001
32. S115/00A v MIMA [2001] FCA 540
33. Re MIMIA exparte applicant S134 of 2002 [2003] HCA 1
34. S157 of 2002 v Commonwealth of Australia [2003] HCA 2
35. SAAS v MIMIA [2002] FCA 726
36. SDAR V MIMIA [2002] FCA 1102 (6 September 2002)
37. Sellamuthu v MIMA (1999) 90 FCR 287
38. Somaghi v MILGEA (1991) 102 ALR 339
39. SRPP v MIMA [2000] AATA 878
40. WAIV V MIMIA [2002] FCA 1186 (20 Sept 2002)
41. Wang v MIMA [2001] FCA 448
42. Woudneh v MILGEA (Unreported Gray J, 16 September 1988)
43. Wu Shan Liang v MIMA (1996) 185 CLR 259

Primary Sources

1. Handbook on Procedures and Criteria for Determining Refugee Status (UNHCR Geneva 1988)
2. Migration Act 1958
3. Migration Regulations

Articles
1. Brennan, F. "Litigating the Rights of the Marginalised - an Australian Revolution in the Rights of Asylum Seekers and Indigenous Peoples", 1993 New Zealand Law Conference, Published by Uniya, 1993
2. Hamilton, A. "Three Years Hard: Australia's dealings with the Cambodian boat people", in Eureka Street Vol3 No1 (Feb 1993) pp 24 - 30, and Vol 3 No 2 (March 1993) pp 22 -28.
3. Kneebone, S. “The Refugee Review Tribunal and the Assessment of Credibility: an Inquisitorial Role?”, Australian Journal of Administrative Law, Vol 5 Feb 1998, pp78-96.
4. Mathew, P. “Sovereignty and the Right to Seek Asylum: the Case of Cambodian Asylum-Seekers in Australia”, Australian Yearbook of International Law 1994, Volume 15, pp 35-101
5. Mathew, P.“Retreating from the Refugee Convention”, in Globalization versus Sovereignty? (Federation Press 1995), pp 149 -162
6. Murphy, K. “Refugees in Australia: The Unwanted Stranger?”, Australasian Catholic Record (April 2002) Vol 79, No2, pp176-188
7. Murphy, K. “Effective Protection?”, Immigration Review [2002] No 3, pp7-10
8. Murphy, K. “The Discretion of the Minister”, Immigration Review [2002] No5, pp13-15
9. National Lecture Series on Administrative Law by Sir Anthony Mason, AIAL Forum No 31, November 2001.
10. Zubrzycki, J. White Australia: Tolerance and Intolerance in Race Relations, Occasional Paper, National Museum of Australia 1995

Books
1. Crock, M. (ed) (1993) Protection or Punishment: The Detention of Asylum Seekers in Australia. (The Federation Press)
2. Crock, M, (1998) Immigration and Refugee Law in Australia, (Federation Press)
3. Crock, M & Saul, B. (2002) Future Seekers (Federation Press)
4. Hathaway, J.C. (1991) The Law of Refugee Status. (Butterworths)
5. Jupp, J. & Kabala, M. (eds) (1993) The Politics of Australian Immigration (BIPR, Canberra)
6. Jupp, J (2002) From White Australia to Woomera
7. McMaster, D (2001) Asylum Seekers (Melbourne University Press)
8. MacCallum, M. (2002) Girt by Sea, (Quarterly Essay, QE 5
9. Mares, P (2002) Borderline, (UNSW Press)
10. Marr D & Wilkinson M, Dark Victory, (Allen & Unwin 2003)
11. Robertson QC, G. (2000) Crimes Against Humanity (Penguin)
12. Senate Legal & Constitutional References Committee, A Sanctuary under Review, June 2000
13. Wilcox, M. (1994) An Australian Charter of Rights (Law Book Company)

Internet sites
www.fl.asn.au - Foundation Law (Legislation, cases)
www.immi.gov.au - Department of Immigration and Multicultural Affairs
www.hreoc.gov.au - Human Rights and Equal Opportunity Commission
www.rrt.gov.au - Refugee Review Tribunal
www.unhcr.ch - UNHCR
www.amnesty.org - Amnesty International
www.hrw.org - Human Rights Watch (USA)
www.refugees.org - US Committee for Refugees

Kerry Murphy © May 2003