Up to 71 asylum seekers who missed out on making an application for a protection visa were still entitled to a fair assessment of their claims the Full Federal Court has held.

The Court accepted submissions from the Australian Human Rights Commission that an internal process established by the Department of Home Affairs should have provided them with procedural fairness.

As a result of the judgment handed down on Tuesday these people may now be entitled to have their claims reconsidered by the Department and, as a result, may be permitted by the Minister to make an application for a protection visa.

"It is vitally important that refugee claims are properly assessed. If the process is not fair, then the wrong decision may be made and asylum seekers could be returned to situations of persecution," Commission President Rosalind Croucher said.

The people affected were part of a group the Government described as the ‘Legacy Caseload'. Initially unable to apply for protection for many years, the Minister for Immigration and Border Protection ‘lifted the bar' to allow them to make an application after the re-introduction of temporary protection visas in 2015. With the help of refugee agencies, thousands of asylum seekers successfully applied but a group of 71 missed a deadline of 1 October 2017 set by the Minister in May that year.

The Department of Home Affairs reviewed the circumstances of those who missed the deadline to determine whether to refer their cases to the Minister. However, the Department claimed that it was not required to ensure that this process was procedurally fair. The Federal Court disagreed.

The Court held that the Minister had made a decision to consider allowing those who missed the deadline to apply for a protection visa if they had substantial protection claims. The Department's internal assessment process was "a step along the way" to assisting the Minister and "it followed that the entire process had to be procedurally fair".

"A fair process would give asylum seekers the opportunity to make submissions about why they should be given protection, and also give them an opportunity to respond to adverse information relied on by the Department" President Croucher said.

"The appellant in this case was not given a chance to respond to adverse information and the process was therefore not fair".

As this case could be the subject of an appeal, the Commission will not be making further comment about it at this stage.

Background

This case was brought by an asylum seeker referred to as CLM18.[1] He arrived in Australia by boat from Sri Lanka in October 2012. He was not permitted to make an application for protection until around May 2016.

In May 2017, the Minister for Home Affairs, the Hon Peter Dutton MP, announced that if people in the ‘legacy caseload' failed to apply for protection by 1 October 2017 they would not be permitted to make an application.[2]

When this announcement was made, there were approximately 7,500 asylum seekers who had not yet made a protection visa application. Of this number, only 71 missed the deadline on 1 October 2017.[3]

CLM18 said that he wanted to make a claim for protection but he had no support network to help him do so as his friends had moved to regional areas of Australia. He was trying to find a pro bono lawyer to assist him when he missed the deadline. He eventually obtained representation with the Refugee Advice and Casework Service and put in an application after the deadline which was rejected by the Department.

In July 2019, the Commission released a major new report, Lives on hold, that provides the first comprehensive account of the human rights situation for the 30,000 refugees and asylum seekers in the ‘Legacy Caseload' who arrived by boat prior 2014. CLM18 is part of this group.

The Commission found that the refugee status determination process for people in the ‘Legacy Caseload' does not provide adequate safeguards against returning people to situations where they are at risk of persecution. The Commission recommended that the Government should not involuntarily remove any asylum seeker in this group until they have had the opportunity to have their refugee claims assessed under a fairer and more robust process.

[1] CLM18 v Minister for Home Affairs [2019] FCAFC 170. At https://www.austlii.edu.au/cgi-bin/viewdoc/au/cases/cth/FCAFC//2019/170.html.

[2] The Hon Peter Dutton MP, Minister for Immigration and Border Protection, ‘Lodge or leave – Deadline for illegal maritime arrivals to claim protection', Media release, 21 May 2017. At http://minister.homeaffairs.gov.au/peterdutton/2017/Pages/deadline-for-illegal-maritime-arrivals-to-claim-protection.aspx.

[3] The Hon Peter Dutton MP, Minister for Immigration and Border Protection, Interview with Ray Hadley, Radio 2GB-4BC, 12 October 2017. At http://minister.homeaffairs.gov.au/peterdutton/Pages/hadley.aspx.