The High Court has clarified important principles about the way the exceptional process known as ‘fast-track’ will operate for up to 25,000 people seeking asylum in Australia and has confirmed that it must operate with a baseline of fairness.‘We are disappointed our client was unsuccessful but the implications of today’s judgment by the High Court are substantial,’ said Chelsea Clark the Acting Program Manager of Migration. ‘The Court has confirmed this fast-track review system carries an inbuilt safety net by providing for some basic protections of due process.’
In December, we ran a case for an Iranian asylum seeker known as M174. Our client arrived in Australia by boat in 2012 and has since converted to Christianity. In assessing his asylum claim, a Department of Immigration and Border Protection official contacted the man’s pastor from a church in southeast Melbourne, who mentioned M174 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 and referred the matter to the Immigration Assessment Authority (IAA). The IAA upheld that decision. The IAA refused to take into account letters from fellow church-goers, who said they believed he was a genuine, faithful Christian. We argued that the official’s decision and the review process of the IAA was unfair.
In a unanimous decision the High Court did not accept that the official’s decision to reject our client’s application was unfair, but it found that in other instances, where an unfair decision is made by a department official, the IAA must exercise its powers and remedy the breach or risk the Court finding that it acted unreasonably. This clarification contained in all three written judgments may be critical in the cases of thousands of vulnerable people who are subject to the fast-track process.
‘In M174’s case, the Court found that the delegate had not breached legal obligations under section 57 of the Migration Act to provide him with an opportunity to comment on adverse information. However, all the judges agreed there are situations where a breach by the delegate will mean the IAA must act to fix the problem.
We are particularly pleased to see confirmed that the IAA must exercise its powers to ensure a baseline of fairness in decisions about fast-track applicants,’ said Chelsea.
We are pleased to have the Court’s interpretation of these complex and unusual provisions. ‘The fast-track review system is a uniquely narrow method of government decision-making which is less fair, and less thorough, than the processes millions of Australians use each year to review government decisions that affect them,’ said Chelsea.
While M174’s legal options have not been exhausted he is deeply saddened by today’s outcome. Like many people in this ‘fast-track’ cohort, he waited almost three years for the chance to even bring his claims for asylum before the Minister. He is now homeless, takes medication for depression and is destitute. The client attended VLA’s office today with the Pastor from his church. He stated that ‘No one can live in uncertainty for so many years, my life has been turned upside down.'
‘I was 19 when I fled my country, I left my family I travelled dangerous oceans. If I didn’t have any problems with the government I would not have put my life in jeopardy’ he said.
Reviewed 19 April 2022