High Court to hear ‘fast-track’ processing of people who seek asylum is unfair

High Court to hear ‘fast-track’ processing of people who seek asylum is unfair

Wednesday, 6 December 2017

Stock image of a man sitting on steps with head on his knees

The so-called ‘fast-track’ review system of special rules applied to some people who are seeking asylum is unfair. It leads to a greater risk of getting decisions wrong and sending people back into danger.

Our comments come ahead of a High Court hearing on Thursday 7 December in a case known as M174. Our client, who is unable to be named, is an Iranian-Christian convert who arrived in Australia by boat in October 2012. He says that he is at risk of harm at the hands of Iranian authorities and others if wrongly forced to return to Iran.

In assessing his claim, a Department of Immigration and Border Protection official contacted the man’s pastor in suburban Melbourne, who said that the man had not attended church as often as he had claimed.

Without giving M174 a chance to respond, the official rejected his application for a temporary protection visa in April 2016 and referred the matter to the Immigration Assessment Authority (IAA). The IAA upheld that decision on 19 May 2016. This meant that M174 was unable to provide letters from fellow church-goers, who said they believed he was a genuine, faithful Christian.

‘The fast-track review system creates a real risk that the claims of people seeking asylum will not be properly considered, and that they will be returned to countries where they are not safe.'

Migration Program Manager Joel Townsend

‘It is less fair, and less thorough, than the processes millions of Australians use each year to review government decisions that affect them,’ Mr Townsend said.

‘We are saying that the review process as a whole needs to be fair for the fast-track system to work.

‘The initial decision by the department official to reject our client's claim for asylum was unlawful because the official did not explain to him the reasons why she had contacted his pastor, what information the pastor had provided and why it was important. She didn’t invite our client to comment on that information.

‘The department official’s decision was not fair. Very restrictive rules prevented the IAA from taking the views of fellow church-goers into account, or to interview our client in the second stage of the fast track process.

‘The authority refused to consider supporting letters which all state that our client is regarded as a genuine and faithful Christian in his community.

‘We say this decision should not have moved on to the IAA for limited review,’ Mr Townsend said.

‘The IAA’s inability to take important, relevant information into account leads to a greater risk of getting decisions wrong.

‘Even if the IAA was allowed to look at our client’s case, it had a duty to be reasonable in considering the case. It wasn’t, and we say the decision should not stand.

'This case isn’t about whether someone is Christian or not, it is about making sure the process is fair for all people who are seeking asylum, whatever their faith or fear of persecution stems from,' he said.

A decision in M174 is expected to be reserved until a later date. The outcome will clarify the lawfulness of the fast-track process for other ‘Legacy Caseload’ cases to come before the courts.

About the 'fast-track' process

The government created special rules in 2014 to process visa applications for some 25,000 people seeking asylum who arrived by boat between 13 August 2012 and 1 January 2014.

The fast-track assessment system means that those whose claims are refused are not given a fair opportunity to put forward their case for asylum, and to deal with adverse information affecting their application.

Mr Townsend said the system is unjustly different to the process other visa applicants go through.

‘Rather than being focussed on providing fairness to people seeking asylum, and on making correct decisions, the IAA can conduct only limited review according to limiting rules.

‘This is creating situations where people seeking asylum are blindsided by issues and evidence which they had no idea they needed to deal with. And these are profoundly disadvantaged people, in desperate need, colliding with an extremely complex area of law.’

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.

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.

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

Read more about why we do 'fast-track' work

For more information about this work, read Explainer – Why we work on ‘fast-track’ migration matters

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.

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