Explainer – why we work on ‘fast-track’ migration matters

Explainer – why we work on ‘fast-track’ migration matters

Wednesday, 6 December 2017

Why do we work on ‘fast-track’ migration matters?

  • Decisions about the claim for protection by a person who is seeking asylum have a huge impact on that person’s life, so it is vital that these decisions are made fairly and lawfully.
  • The ‘fast track’ system creates a real risk that the claims of people seeking asylum are not properly considered, and that they may be returned to countries where they are not safe
  • Under this system, people who are seeking asylum can be blindsided by issues and evidence which they had no idea they needed to deal with. This is because the Immigration Assessment Authority has no capacity to take new information into account and can only conduct a limited review.  

What is the ‘fast-track’ migration assessment process?

The Australian Government introduced the ‘fast-track’ legislation in December 2014. It brought into effect new migration assessment processes, which have drastically changed the refugee determination process. 

This ‘fast-track’ process applies to the processing of visa applications for around 25,000 asylum seekers who arrived by boat between 13 August 2012 and 1 January 2014. Those whose claims are refused by the Department of Home Affairs are referred to the Immigration Assessment Authority (IAA).  

In other merits review processes common in Australian law, the reviewer ‘stands in the shoes’ of the primary decision-maker (in this case the Minister for Immigration and Border Protection, or a delegate of the Minister) and is able exercise all of the primary decision-maker’s powers.

Under the new process, this is replaced by a limited form of merits review at the IAA. An asylum seeker is not entitled to a hearing at the IAA.

Why is the ‘fast-track’ process unfair?

The early experience of this ‘fast-track’ decision-making process is that it fails to accord with the basic principles of fairness that underpin Australian public law.

The ‘fast-track’ process means that this group of asylum seekers is at real risk of their claims not being properly considered, and of being returned to countries where they are not safe.

They are not given a right to full merits review of an adverse decision under this process. Except for only a small number of the most highly vulnerable asylum seekers, they have also lost access to adequate legal assistance to help prepare their protection claims.

As such, it is less fair, and less thorough, than the processes millions of Australians use each year to review government decisions that affect them; for example, decisions about granting a planning permit for a proposed renovation, raising a tax or a social security debt, or whether a health provider has breached a patient’s privacy rights.

Rather than being focussed on providing fairness to asylum seekers, and on making correct decisions, the IAA can conduct only limited review and, except in unusual circumstances, has no capacity to take new information into account. This creates situations where asylum seekers are blindsided by issues and evidence which they had no idea they needed to deal with. 

This all leads to a greater risk of getting decisions wrong.

Significantly, these asylum seekers also face extreme hurdles in seeking to have their refugee claims recognised. This includes language barriers and mental health issues due to a history of torture and trauma.

The Australian Government’s policy decision of August 2012 also created a back-log of cases, with each asylum seeker forced to wait years before they could put forward their claims and have them assessed. This has a significant effect on the credibility of their claims, as an applicant’s memory of precisely what happened and when naturally deteriorates over time.      

Why do matters go to the High Court?

Decisions about an asylum seeker’s claim for protection have a huge impact on that person’s life, so it is vital that these decisions are made fairly and lawfully.

Challenges to the IAA decision can be made to the Federal Circuit Court, however Section 476 of the Migration Act 1958 prevents this court from having jurisdiction over primary decisions, that is, the decision of the delegate (usually an official of the Department of Home Affairs). 

These matters can go to the High Court, like in the case of M174.

In the M174 matter we are challenging the decision of the Minister’s delegate. We are saying that the system, as a whole, must be fair and that a legal error at either stage of the process should make the decision invalid. The initial decision by the department official to reject M174’s s claim for asylum was unlawful. As such, we are saying that this decision cannot be referred to the IAA for limited review.

How is this work funded?

A two-year initiative was launched in April 2016 to support Refugee Legal and Justice Connect’s coordination of legal services for this group of people seeking asylum.

The Asylum Seeker Resource Centre and private lawyers supported by the Law Institute of Victoria, which has coordinated the ‘Legacy Caseload Working Group,’ have also been vital in assisting this group of people seeking asylum.    

Some cases that involve court proceedings, such as M174, are referred to Victoria Legal Aid migration lawyers who assist with judicial review proceedings to ensure that decisions are made lawfully.

Funding for this work draws from funds provided under the National Partnership Agreement on Legal Assistance Services (NPA). The NPA identifies migration as a ‘civil law problem… likely to have a significant adverse impact if not resolved.’ 

Some basic facts and figures

Some basic facts and figures about our work on ‘fast-track’ and other migration matters are:

  • We have worked on four ‘fast-track’ matters before the Federal Circuit Court which deal with IAA decisions that have proceeded to hearing and decision. We won two of those.
  • We have run two other cases before the Full Court of the Federal Court, AMA16 and CRY16, which deal with issues of fairness in the IAA process:
    • AMA16 dealt with the circumstances in which an applicant might be said to have a reasonable apprehension of bias on the part of the decision-maker. We won in this matter.  
    • CRY16 dealt with the question of whether the IAA has an obligation to consider giving an applicant an interview when a new issue comes up in its review, which was not an issue at the first stage of the assessment of their claims. We won in the Federal Circuit Court, and the Minister appealed to the Full Court of the Federal Court. We are waiting on a decision on this appeal.
  • Our work in 2016–17 on all migration matters, including ‘fast-track’ matters, equates to 1.6 per cent of our total operating budget.
  • In 2016–17 we provided 86 grants of legal assistance through our Migration program (up by 32 per cent on 2015–16). This includes all migration matters.   

Note: Current at time of publication, 6 December 2017.

More information

Read more about the fast-track process on Refugee Council of Australia's website:

Find out more on our website about Migration and how to get help. Also:

Also read Managing Director Bevan Warner's explanation of why we fund legal assistance for people who are seeking asylum: A fine balance, 26 April 2016.