Annual Report 2015/16

14 Refugee Advice & Casework Service Annual Report 15/16 15
Fast Track Process and RACS Response
There is a group of around 24,000 people in Australia who
are currently in the process of receiving permission to
lodge protection visa applications. Although they arrived in
Australia between August 2012 and the end of 2013, they
were “barred” from making any kind of visa application by
reason of their mode of arrival. It is anticipated that over
the next few years this group will progressively be given
permission to apply for protection visas.
A person seeking asylum who came by boat to Australia is
a fast track applicant if they:
• arrived in Australia on or after 13 August 2012 and
before 1 January 2014; and
• have not previously been to a regional processing
country (either Nauru or Papua New Guinea).
The first date corresponds with the previous government’s
announcement of its “no advantage” policy. Not making a
decision about refugee status was part of that policy.
After a period in detention in Australia, most people were
granted bridging visas. Another part of the “no advantage”
policy was that although people were permitted to live in
the community, they were not allowed to work. For some
people this meant more than two and a half years of
surviving without working. The Minister for Immigration
began granting bridging visas with work rights after the fast
track legislation was passed in December 2014.
Approximately 80% of this group of people have not had
(and will not have) access to lawyers under any scheme of
government funded legal assistance. RACS and a number
of other refugee legal centres around Australia are assisting
people with statement writing, completing forms and with
legal advice. This work is generally funded by these refugee
legal centres own fundraising efforts and interpreting costs
are a significant expense that fundraising efforts
must also cover.
We know from the legal work we have been doing with this
client group that they are from a range of countries, but that
the four predominant nationalities are Sri Lankan, Afghan,
Iraqi and Iranian.
What is new about the protection visa process for this
group?
This group is subject to new rules regarding the protection
visa process. A significant difference between the fast
track process and the system that continues for other
protection visa applicants is that the only avenue for
merits review of fast track decisions is a new body, the
Immigration Assessment Authority (IAA).
Unlike the AAT (and before it the RRT), which must invite
applicants to hearings and allow them to comment on
adverse information, the IAA:
• has no obligation to hold a hearing or seek any
information from an applicant;
• has no obligation to allow a fast track applicant to
respond or correct adverse information raised at the
Immigration stage; and
• is not required to consider new information provided
by the applicant other than in what it considers to
be exceptional circumstances.
The IAA is therefore bound by very limited rules of natural
justice. The only situation in which the IAA is required to
invite a fast track applicant to comment on information is
where the IAA seeks to affirm the decision under review by
relying on information that wasn’t available to the primary
decision maker.
In addition to the changes described, it is also worth noting
that even where a fast track applicant is successful, the
visa itself is now different. At the point of their “bar lift”,
applicants must make a choice between applying for two
kinds of temporary visas: they must choose whether they
lodge an application for a Temporary Protection Visa (TPV)
or Safe Haven Enterprise Visa (SHEV).
If applicants are hoping to apply for permanent visas (such
as skilled or spouse visas) after holding a SHEV they need
to plan to be working or studying in a designated regional
area. New South Wales was the first state to declare such
areas, declaring almost all of the state outside of Sydney,
Wollongong and Newcastle. All of Tasmania has also been
designated.
The new definition of a refugee
This group of people are also subject to new definition of
a refugee. There are currently two definitions of a refugee
running concurrently in Australia: one which applies for
protection visa applications lodged on or after 16 December
2014, and one which applies for protection visa applications
lodged prior to that date.
The new definition removes references to the Refugee
Convention from the Migration Act and replaces them
with a narrower, codified interpretation of its international
protection obligations under the Refugee Convention.
The new definition applies to all people seeking asylum
regardless of their mode of arrival in Australia, but it
will apply to all fast track applicants (because they did
not have permission to lodge a valid application before
commencement of the new definition).
RACS’ response
RACS has responded to this increased legal need by
changing our processes and harnessing the incredible
support of a number of partners and volunteers. We have
moved from a telephone advice model of service provision
to a drop-in outreach service model. We have moved to two
evening clinic nights to allow for solicitors with daytime
commitments to volunteer their time at night. We have
initiated the ‘Justice for Refugees’ project to allow for
judicial review of negative decisions by the IAA.
The changes we have made have been embarked upon
in recognition of Australia’s obligations not to return to
situations of persecution people seeking asylum who arrive
in Australia, regardless of when, how or where they arrived
and whether they arrived with or without a visa.
At the time of publication we have now provided over 3000
fast track clients with legal help.
Behind RACS’ response is a commitment to a decision
making process at both merits review and judicial review
levels which is fair. Our experience at RACS tells us that it is
inherently unfair to expect people seeking asylum without
financial resources to present their cases to decision
makers in English, in writing, without legal knowledge about
the Australian legal system and while suffering the negative
effects of previous trauma.
The decision whether to grant a protection visa may mean
the difference between rebuilding a life and being sent back
to grave danger. The seriousness of the risks involved for
our clients informs our commitment to a decision making
process which is fair and just, and which necessarily
includes access to legal help.
“I really feel that we make a difference. Recently, we had a client
with a complex history which couldn’t be explained in detail
without a lot of help. They were from a religious minority and
had experienced a lot of problems in their home country the
year before they left. Their application for a protection visa
had been refused and we represented them before the Refuge
Review Tribunal and now they have permanent residency.”
Scott Cosgriff, Senior Solicitor