Test cases cement legal safeguards in controversial ‘fast-track’ process for people seeking asylum

Test cases cement legal safeguards in controversial ‘fast-track’ process for people seeking asylum

Monday, 23 April 2018

In two test cases we have helped clarify important aspects of how the so called ‘fast-track’ refugee determination process should operate.

Importantly these cases have cemented some safeguards of due process for up to 25,000 people seeking asylum in Australia. The cases, known as CRY16 and M174, have implications about how the limited merits review of the Immigration Assessment Authority (IAA) must operate, imposing effectively a baseline of fairness when assessing visa applications.

Late last week the High Court dismissed the Minister for Home Affairs’ application for special leave to appeal the Full Court of the Federal Court’s decision in favour of our client. Our client CRY16, is a Lebanese asylum seeker who arrived in Australia by boat in 2013.  

In 2016 a Department of Immigration and Border Protection official refused CRY16’s Protection visa application on the basis that they did not accept he was at risk in Lebanon. At the next stage of review the IAA determined that he had a well-founded fear of persecution on return to his home area, but that it was reasonable for our client to relocate to Beirut and therefore he could safely return. The IAA made this decision without giving our client the opportunity to comment and give further evidence on the issue of relocation.

High Court dismisses minister's appeal

CRY16 appealed against this decision and with our representation was successful in the Federal Circuit Court, where the court determined that the IAA’s decision was unlawful. The Minister for Home Affairs appealed to the Federal Court, which unanimously found that the IAA has a discretion to get new information and this discretion must be exercised reasonably. The Full Bench of the Federal Court also found that the failure of the IAA to consider whether to invite the applicant to provide new information about relocation to Beirut, was unreasonable. 

In dismissing the Minster’s application to appeal that decision, the High Court has found that the Federal Court decision is legally correct and binding on IAA decision makers.  

This decision in CRY16 came a day after a judgment in another case, M174. In that case, the High Court also decided that the IAA must exercise its powers and discretions reasonably. For our clients, this decision will increase the chance that the IAA ‘fast track’ system operates with a baseline of fairness.

The implications of both CRY16 and M174 are substantial. The court has confirmed that this fast track review system carries an inbuilt safety net by providing for some basic protections of due process.CRY16 confirms that if the IAA is considering a new issue, that was not an issue before the department official, it may be unreasonable for the IAA not to consider using its powers to get new information. Likewise, M174 confirmed that when the IAA reviews decisions by a delegate who has breached the law, it will risk 'transgressing the bounds of reasonableness' if it does not remedy the delegate’s mistake.

Our client CRY16 has been in detention for almost 5 years without a bridging visa or migration certainty. Like many people in the ‘fast-track’ cohort he waited over two years for the chance to bring his claims for asylum before the Minister. He remains in detention awaiting a new decision by the IAA.

On hearing about his recent success, CRY16 told his lawyer of two years ‘Immigration made a mistake and the Court treated me fairly and gave me justice.’

More Information

Read about Why we work on fast-track matters

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