The people in Temporary were labelled ‘illegal maritime arrivals’. Watch Professor Jane McAdam explain in one minute why that is wrong.

Australia receives a very small number of the world’s asylum seekers, both in absolute terms and in relation to other countries. The graphs below help explain:

Asylum applications received in Australia compared to other countries in 2019

In 2019, 2 million new asylum applications were lodged throughout the world. The chart below shows how the number of applications Australia received that year compares to the countries that received the greatest number of applications.

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How many refugees and other humanitarian entrants does Australia accept compared to other migrants?

The graph below compares the number of people Australia plans to take in 2020-21 through its Refugee and Humanitarian Program with the number of people it plans to take through its skilled and family migration schemes.

An ‘asylum seeker’ is someone who is seeking protection but has not yet had their refugee claim determined by an official – in other words, they might be a refugee, but we do not yet know because no one has heard and evaluated their claim.

A ‘refugee’ is someone who has a well-founded fear of being persecuted for reasons of their race, religion, nationality, political opinion or membership of a particular social group, and who cannot return home because this would expose them to a risk of persecution. Countries have obligations under international law to protect refugees, as well as people fleeing other serious human rights violations, such as torture or cruel, inhuman or degrading treatment or punishment. Recently, Australia has accepted about 15,000 refugees a year.

A ‘migrant’ is someone who chooses to move to another country, usually for work, education or family reasons. Whereas refugees are compelled to leave their countries, migrants do so voluntarily. Countries have the discretion whether to admit someone as a migrant. Recently, Australia has accepted about 190,000 permanent migrants a year.

Under international law, it is legal to seek asylum via any means available. But Australian migration law draws a distinction between asylum seekers that enter Australia with a valid visa, and those that do not.

There are two ways that a person seeking asylum might obtain a visa before travelling to Australia. The first is to obtain a different kind of visa, such as a work visa or a student visa, and apply for asylum on arrival through Australia’s onshore protection program. The other way is to apply for a protection visa from outside Australia. This typically requires a referral from the United Nations High Commissioner for Refugees (UNHCR), or the support of an individual or organisation within Australia. A person who is granted a protection visa via either of these channels is entitled to permanent protection in Australia.

Asylum seekers who arrive in Australia without a visa are deemed under Australian law to be ‘unlawful non-citizens’ and are typically placed in immigration detention. Since 2014, they have had no access to permanent protection in Australia, but in some cases may apply for temporary protection. People who arrive by boat, like the people profiled in Temporary, are referred to by the Australian government as ‘unauthorised maritime arrivals’ or ‘illegal maritime arrivals’.

There is no ‘queue’ for people seeking asylum. There is a common misconception that if refugees just waited in camps overseas, they would eventually be resettled, but people fleeing harm do not always get to choose where they travel to. There is also no guarantee of resettlement. Fewer than 1 per cent of the world’s refugees are resettled annually.

For these reasons, international law states that if a person enters a country without a visa seeking asylum, they should not be treated as illegal or be subjected to any disadvantage.

For more information see the Kaldor Centre’s factsheet on resettlement. You may also be interested in this Refugee Council of Australia analysis of global resettlement data from 2004-2018.

The stories told in Temporary feature asylum seekers who form part of the ‘legacy caseload’. This term refers to a group of around 30,000 asylum seekers, who arrived in Australia by boat between mid-2012 and early 2014, during the Labor government’s term of office.

The legacy caseload are a noteworthy group of people because their arrival in Australia coincided with major policy shifts designed to restrict access to permanent protection in Australia for asylum seekers who arrive by boat. As a result, their road to applying for refugee status is one filled with uncertainty, delay, social and economic hardship and administrative complexity. If their application for refugee status is unsuccessful, they have minimal rights to review and face being sent back to the countries they have fled. If they are found to be refugees, unlike other refugees, they cannot call Australia their permanent home. Instead, they must reapply for protection every 3 to 5 years. They also have more limited work rights and access to social services.

You can read more about the legacy caseload in this Kaldor Centre factsheet.

Since 1992, Australian law has required the mandatory detention of asylum seekers who arrive by boat without a visa.

Up until 2012, asylum seekers who had arrived by boat were able to lodge an application for permanent protection, from detention. If recognised as refugees, they would become Australian permanent residents.

From 2014 onwards, refugees who arrive by boat generally have not come to Australia at all: Australian law says that they must be transferred to Papua New Guinea or Nauru for regional processing. This law is applied in conjunction with a policy to monitor the Australia coastline and ‘turn back’ boats before they reach Australia.

The members of the legacy caseload occupy a middle-ground. They can apply for protection in Australia, and at present they are the only boat arrivals who are allowed to do so.  However, they face significant limitations compared to other people who seek asylum in Australia.

Members of the legacy caseload face three main disadvantages compared to other people seeking asylum:

Bar on protection applications

In 2012, the Labor government introduced a statutory ‘bar’ which blocked members of the legacy caseload from applying for protection in Australia. Applying for protection is only an option if the Minister* decides to ‘lift the bar’ for an individual, granting them leave to apply.

Temporary protection

In 2014, the new Coalition government passed new laws that further tightened the options for the legacy caseload. These laws said that, where the bar on applying for protection had been lifted, members of the legacy caseload would ineligible for a permanent protection visa. Instead, even if they were found to be refugees they would be only be entitled to protection for 3-5 years. After this, they would have to reapply, and re-establish their refugee status.

Fewer rights to get a negative decision reviewed

The 2014 laws also made members of the legacy caseload subject to a new process called the ‘fast track assessment process’. Under this process, an asylum seeker whose protection claim is rejected has far more limited opportunities to have an independent body check whether there was a mistake in the rejection decision. This increases the possibility that someone’s asylum application might be wrongly rejected.

For more information see the Kaldor Centre’s research brief on ‘Fast track’ refugee status determination.

* In Australia, responsibility for immigration matters is currently divided between the Minister for Home Affairs and the Minister for Immigration, Citizenship and Multicultural Affairs.

Detention: After arriving in Australia by boat without a visa, asylum seekers in the legacy caseload are kept in detention. They may, however, be granted the right to live in the community subject to restrictions.

‍Application: A statutory ‘bar’ stops asylum seekers in the legacy caseload from applying for protection. They may only apply for protection once the immigration minister decides to ’lift the bar’. After submitting an application for protection, they must wait to attend an interview with an immigration official.

Review: An asylum seeker in the legacy caseload who is denied a protection visa may seek a limited form of merits review, or judicial review. As a final resort, they may ask the Minister for Home Affairs to intervene and grant them protection.

Reapplication: If successful in obtaining a protection visa, asylum seekers in the legacy caseload are only entitled to temporary protection of 3–5 years. After this time, they must reapply for protection again.

The asylum seekers who form part of the legacy caseload all arrived in Australia without a visa. This means that they have all spent time in Australia’s mandatory immigration detention system.

Australia’s Migration Act says that all non-citizens who arrive in the country without a visa must be detained. A person must remain in detention until they are either granted a visa or they leave Australia. A detainee may choose to leave Australia at any time, or be removed by force when their options to apply for a visa options have been exhausted.

On average, detainees spend around 550 days in immigration detention, although for asylum seekers who arrived by boat this may be far longer.

For more information, see the Kaldor Centre’s factsheet on Immigration Detention in Australia.

No. As a general principle, detaining a refugee or asylum seeker will be unlawful under international law unless it is:

• reasonable
• necessary
• proportionate, and
• subject to periodic review.

Blanket detention policies – such as Australia’s policy of mandatory detention for those arriving without a valid visa – do not satisfy these criteria and therefore contravene international law. In 2015, the UN Special Rapporteur on Torture found that Australia’s detention practices violated the right of asylum seekers, including children, to be free from ‘torture or cruel, inhuman or degrading treatment’.

For more information, see page 6 of the Kaldor Centre’s Principles for Australian Refugee Policy.

‘Refoulement’ is a term used to describe the forcible return of a refugee or asylum seeker to a place where they may be subject to persecution. It is prohibited under international law.

Despite this, Australia’s Migration Act says that a detainee who has run out of avenues to apply for a visa must be removed from Australia, even if this would amount to refoulement.

When a detainee leaves Australia, they may be sent to their country of citizenship, or any other country that is willing to accept them. Sometimes, however, it is not possible to find any country that will take the person. This is a particular risk for asylum seekers and stateless people. In this case, Australia’s High Court has held that, under current Australian law, a person can be kept in detention indefinitely. This is despite the fact that indefinite detention contravenes international human rights law.

Australia’s detention policies are out of step with those in many other countries:

• Most South American countries do not legally require that asylum seekers be detained. Some explicitly prohibit it. For example, the Ecuadorian Constitution recognises freedom of movement for all people, and prohibits the criminalisation of irregular migration.
• EU states are required to observe minimum standards designed to provide asylum seekers with a dignified standard of living. Many states have replaced the detention of asylum seekers with alternatives, such as community based residence with reporting requirements.

For more information, see pages 7-8 of the Kaldor Centre’s Principles for Australian Refugee Policy. See also this International Detention Coalition handbook.

Since 2012, asylum seekers from Sri Lanka have been subjected to an additional interview process called the ‘enhanced screening process’. In 2015, enhanced screening was extended to asylum seekers from Vietnam.

Enhanced screening operates as a precursor step that takes place before a person can submit an application for protection in Australia. Sometimes it is conducted while asylum seekers are in immigration detention, and sometimes it happens on boats ‘on water’, before a transfer to immigration detention has taken place.

At the enhanced screening interview, the interviewer must determine whether the interviewee is raising a protection claim that may have merit. If the interviewers find that they are doing so, the asylum seeker is ‘screened in’. This does not mean that they will be granted protection, merely that they will have access to the protection application process, like other asylum seekers.

If the asylum seeker does not mention that they are seeking protection, or if the interviewers do not believe them, they will be ‘screened out’. This means being removed from Australia, often at very short notice.

People subjected to the enhanced screening process often do not have access to a lawyer. This means that they are typically unaware of how the process works and what the interview means. It also means that there is less opportunity to identify when the process is not operating correctly.

Theoretically an asylum seeker who is ‘screened out’ has a right to have this reviewed in the courts. But in practice they may be forcibly removed from Australia before there is any practical opportunity to exercise this right.

UNHCR as well as several legal experts have raised concerns that the enhanced screening process violates international law and that it creates a risk that genuine refugees will be returned to places where they will face persecution.

Australia’s onshore immigration detention network is comprised of several detention centres, spread throughout the country. There is also a detention centre on Christmas Island where many members of the legacy caseload spent some time. This was closed in 2018, but was reopened in August 2020.

It is common for detainees to be relocated – sometimes with very short notice or by force – to different detention centres within the network. This makes it difficult for detainees to maintain friendships and relationships of support with other people in detention and community volunteers. Relocation can also make it difficult to stay in contact with legal representatives. When detainees have access to a mobile phone this is made easier.

For more information, see this Sydney Morning Herald article: The 8000 'forced movements' on Australian flights in two years

Asylum seekers in immigration detention may also be transferred to ‘community detention’. Like relocation, this is something that happens at the discretion of the Minister.

A person in community detention is able to live in community-based accommodation and move about with more freedom than someone in an immigration detention facility. They are, however still considered to be in detention, and are subject to various restrictions.

People in community detention are able to…

• Access designated government housing
• Move about the community
• Access some income support

People in community detention are unable to…

• Work
• Sleep outside their designated place of residence
• Move around unrestricted – they must abide by curfews and reporting requirements

A bridging visa is a short-term visa that the Minister may elect to grant to a non-citizen while their final visa status is being determined. A person on a bridging visa may live in the community. Unlike people in community detention, they are not legally considered to be in detention.

There are various kinds of bridging visa, each with different terms and conditions. People in the legacy caseload are typically granted a bridging visa known as the Bridging Visa E, or ‘BVE’.

For more information, see the Kaldor Centre’s factsheet on Bridging Visas.

Not all individuals on a Bridging Visa E (BVE) are subject to the same conditions. But in general, BVEs are granted with various default restrictions:

• No working rights
• No access to Medicare unless work rights are granted
• No study rights except for people under 18
• Requirement to report periodically to the Department of Immigration
• No right to travel outside Australia

While people on BVEs aren’t automatically granted the right to work or study, they can make an application for these rights to be granted. Via this process, many members of the legacy caseload have gained the ability to work and study while waiting on a BVE.

Some asylum seekers on BVEs may be eligible for a degree of income support under the Status Resolution Support Services (SRSS) program. However, in 2018 and 2019, the SRSS budget was cut by 60%, meaning that many asylum seekers no longer qualify for income support. Even where a person is eligible for support, payment rates fall well below the poverty line, and do not allow people to meet their basic needs. This, coupled with the fact that asylum seekers on BVEs are not guaranteed work rights, means that many live in destitution.

Even where an asylum seeker on a BVE does have the right to work, there are significant barriers to employment. These include a lack of recognition for qualifications obtained overseas, and the extra burden on employers to check regularly to ensure the asylum seeker has work rights.

To be granted the right to live in the community on a BVE, asylum seekers are required to sign a Code of Behaviour, made under Australia’s Migration Regulations. If an asylum seeker refuses to sign the code they are liable to remain in or be returned to immigration detention.

The Code of Behaviour sets out six expectations that asylum seekers on a BVE must abide by.

Consequences of breaching the Code of Behaviour

Breaching any of the requirements of the Code of Behaviour leaves a BVE holder vulnerable to a number of consequences. These include:

• Cancellation of the BVE and return to immigration detention
• Reduction or suspension of income support payments
• A range of other actions, including receiving counselling or a warning.

Many of the requirements of the Code of Behaviour simply oblige asylum seekers that hold BVEs to comply with Australian law. Breaching these requirements leaves asylum seekers open to criminal or civil penalties, in addition to the consequences listed above.

The Department of Home Affairs has significant discretion in determining how the Code will be implemented. The process for determining when a BVE holder has breached the code, or what penalty is most appropriate for particular breaches is not publicly available.

Children born in Australia do not become Australian citizens at birth unless at least one parent is an Australian citizen or permanent resident.

Children born to asylum seekers – who are in immigration or community detention are ‘unlawful non-citizens’ at birth and are subject to detention themselves.

Children born to asylum seekers on BVEs, TPVs or SHEVs hold the same visa as their parents and are subject to the same restrictions.

Whether they are living in an immigration detention centre, community detention or on a BVE, each member of the legacy caseload faced a statutory bar on applying for protection. This meant they were unable to lodge a protection application until the Minister decided to ‘lift the bar’ by sending them a letter inviting them to apply.

The Minister began lifting the bar for some legacy caseload members in 2015. But for many, the bar remained in place for far longer — as late as December 2016

In May 2017, the Australian government announced that all asylum seekers in the legacy caseload were required to lodge an application for protection by 1 October 2017 or be deported from Australia immediately.

This meant that individuals and families had to complete, in English, a lengthy application form concerning their claim for protection and experiences of trauma and harm with severe time pressures.

Once the bar was lifted, members of the legacy caseload were able to apply for a protection visa. They had two temporary protection visas to choose between: a Temporary Protection Visa (TPV) and a Safe Haven Enterprise Visa (SHEV).

A TPV grants three years of protection in Australia. After this time, the TPV holder must apply for another temporary protection visa in order to remain in Australia.

A SHEV grants five years of protection. After this time, the holder may apply for another temporary protection visa. They may also apply for a selection of permanent visas, but to do this they must meet several conditions that are difficult to satisfy.

An application for a TPV or a SHEV must be completed in English. It requires an asylum seeker to:

• provide translated, certified documents proving their identity and nationality, unless they can explain why this is not possible;
• provide extensive details about aspects of their life, including their family, education, travel history and employment; and
• explain why they meet the definition of a refugee.

The form is 38 pages long, and contains 85 questions, many of which also have sub-questions.

It is very important that the application form is completed fully and that it includes all relevant documentation and evidence, because it may be the only opportunity for the applicant to make their case for protection to the department. However, language barriers and the complexity of the process mean that it may be difficult for an applicant to put forward the strongest case if they do not have assistance from a lawyer or migration agent.

Access to legal assistance is crucial to ensuring that people seeking asylum are afforded due process, enabling them to navigate a complex legal system, properly present their protection claims, and challenge erroneous decisions.

However, most asylum seekers in Australia are not entitled to government funded legal assistance. They may pay a lawyer or migration agent for help when preparing a protection application, however due to the financial challenges faced by asylum seekers on BVEs, this option is out of reach for many.

Some organisations provide pro bono legal support free of charge to asylum seekers, however this is very limited, and successive cuts in government funding have restricted access further. The tight timeframe imposed on the legacy caseload for lodging a protection application meant that demand for this limited legal support was very high. Wait times were long, and not all applicants were able to access a lawyer.

For more information, see the Kaldor Centre’s factsheet on legal assistance for people seeking asylum.

The Department of Home Affairs emphasises that information about identity, nationality or citizenship is essential to assessing a person’s claim for protection, and completing character and security checks.

But the nature of forced migration means that many people who need protection may not have access to identity documentation for various reasons. For instance:

• Refugees fleeing from persecution by their home government may be unable to obtain a passport or other official documentation from officials.
• Refugees who are not recognised by their home governments as citizens may be refused documents. For example, Feili Kurds are stateless, and are not issued identification by Iran.
• Refugees fleeing persecution may strategically choose to travel without documentation in order to avoid being identified as they leave their country to reduce risk to themselves and their family.
• Sometimes asylum seekers are advised by people smugglers to destroy their documentation to get rid of any paper trails that may incriminate them.
• Refugees who are fleeing from rapidly deteriorating conditions may simply not have the time to apply for documentation.

Under Australian law, anyone who applies for a protection visa must generally be rejected if they:

• refuse to provide any identity documentation;
• destroy or dispose of identity documentation; or
• provide a ‘bogus’ identity document (eg a fake passport).

The exception is where the Minister is satisfied that the person:

• had a reasonable explanation for lacking, disposing of or falsifying identity documentation, and
• ultimately provided identity documentation, or took reasonable steps to provide it.

However, even in circumstances where a protection visa is ultimately granted, arriving without documentation often delays the resolution of an asylum seeker’s legal status, and prolongs their stay in detention. 

This Lowy Institute report examines some of the challenges of assessing identity for undocumented asylum seekers, in Australia and abroad.

After lodging an application for a TPV or a SHEV, members of the legacy caseload must wait for correspondence from the Department of Home Affairs. The department will typically invite the applicant to attend an interview with an immigration officer. It may also ask for further information or documentation to be provided in writing.

At the interview, the officer will ask the applicant to provide more information about themselves and their claim for protection. If the applicant has a lawyer or migration agent, they may also attend the interview.

Following the interview, the department will decide whether the applicant has established that they need Australia’s protection, and whether they meet other requirements relating to health, identity, security and character. If all the requirements are met, the asylum seeker will be granted a TPV or a SHEV. Otherwise, their application will be rejected.

Formalities

The interviewer will go through formalities such as checking photo ID, asking for consent to record the interview, and asking whether the person seeking protection objects to the interpreter, if one is present.

Claim for Protection

The interviewer will ask questions to  determine why the person seeking protection fears returning to their home country. They will also seek to determine the person’s identity, and assess whether or not their claims are credible. The interviewer may ask any question, including personal questions that may feel intrusive.

Adverse Information

If the Department has any information that it may use to refuse the protection application, the interviewer will put this information to the person seeking protection. They may respond at the interview, or in writing at a later date.

For more information, see this explainer on the interview process from the Refugee Advice and Casework Service.

When an a member of the legacy caseload is granted a TPV or a SHEV, this is a recognition that Australia considers them to be a refugee entitled to protection. However, unlike other refugees who are granted protection for life, they are only guaranteed a safe home in Australia for the 3 to 5 year term of the visa. When the TPV or SHEV expires, they will be required to reapply for a protection visa, and re-establish that they are a refugee in need of protection.

TPVs and SHEVs give the holder a greater range of entitlements than bridging visas, but fewer than a permanent protection visa.

Many refugees who have been granted protection in Australia have family members in the countries they have fled, who may themselves be facing ongoing persecution, violence or poverty. However, the options to bring family to Australia are limited. Refugees on permanent visas can sponsor family members to come to Australia, but the cost of doing so – typically in excess of $10,000, and sometimes up to $100,000 – can be prohibitive.

But members of the legacy caseload have even poorer prospects of reuniting with their families. Refugees on TPVs or SHEVs are not allowed to sponsor family members for permanent migration to Australia. Even if they are ultimately able to obtain permanent residence in Australia, government policy says that refugees who arrived by boat will have any applications for family reunion placed at the end of the queue for processing.

Members of the legacy caseload also face significant barriers to travelling overseas to visit family. While on BVEs, no overseas travel is permitted. Refugees on TPVs or SHEVs can only travel overseas with written permission, and this will only be granted where the department decides there are ‘compassionate or compelling circumstances’. They are also unable to travel to the country they have fled from, so need to arrange to meet family members in a third country.

Australia’s family separation policies are not consistent with international law, which protects the right to family life and family unity. This requires not only that countries refrain from separating families, but also that they take measures to reunite family members who have been separated.

For more information see this Refugee Council of Australia factsheet.

Being reunited with family is an important aspect of the healing process for refugees, particularly for those with psychological trauma. It is also important for successfully integrating refugees into a new society socially and economically.

When refugees are not given family reunion options, they are vulnerable to:

• Higher rates of mental illness and post-traumatic stress, exacerbated by a lack of social and emotional support;
• Psychological stress as a result of uncertainty about the safety and wellbeing of family members;
• Breakdown of the family, as family members may feel they have been abandoned;
• Decreased ability to obtain an education, find and hold stable employment and develop new social networks .

You can read more in this recent Oxfam report on the impact of Australia’s family separation policies on refugees and other humanitarian migrants.

While in theory SHEV holders have the option of applying for a range of permanent visas, in practice this ‘pathway to permanency’ has been described as ‘illusory’. Limited work options for temporary visa holders and the lack of subsidised study options make it very difficult for SHEV holders to achieve the requirement of 3½ years of work or study without accessing government support.

In addition, there are significant barriers that mean that it is unlikely that a SHEV holder will be able to meet the criteria for any of the permanent visas that they might apply for.

Importantly, SHEV holders are not able to apply for a permanent protection visa. When introducing the TPV and SHEV visa categories, then immigration minister Scott Morrison emphasised that to meet the criteria to apply for any of the available permanent visas, a SHEV holder would have to clear 'a very high bar'.

The most likely scenario is that when a SHEV expires, the only viable option will be to apply for another SHEV or a TPV.

For further reading, see the Australian Human Rights Commission's Lives on Hold report.

When a person’s TPV or SHEV expires, it is most likely that their only practical option to stay in Australia will be to apply for another TPV or SHEV. This means that members of the legacy caseload are effectively trapped in a cycle of ongoing temporariness.

A person who is reapplying for a TPV or SHEV must fill out a new application form. The form is 9 pages long and contains 14 questions. The application must be lodged before the original TPV or SHEV expires, otherwise the person will become an unlawful non-citizen and may be barred from reapplying for protection.

Reapplying for another TPV or SHEV requires the visa holder to prove that they are still a refugee who is in need of Australia’s protection. When assessing this, the department will look at:

• Whether anything has changed in the country from which the person claimed protection (e.g. has the risk that the person will face persecution changed?)
• Whether there have been any changes to the person’s personal circumstances that might affect their eligibility for the TPV or SHEV (e.g. criminal offences or other conduct that may indicate bad character, travel without permission, changes in reasons `for claiming protection)

The person may be required to attend another interview with a department official about these matters. If the department finds that the person is still a refugee in need of protection, they will be granted another TPV or SHEV.

Only having access to temporary protection leaves refugees in a prolonged state of uncertainty and insecurity.

Recent research has found that refugees on insecure temporary visas experience significantly worse mental health than refugees on secure permanent visas:

• 49% of temporary visa holders had a probable diagnosis of post-traumatic stress disorder (PTSD), compared to 30% of permanent visa holders.
• 43% of temporary visa holders had a probable diagnosis of depression, compared to 17% of permanent visa holders.
  People on temporary visas were 2.4 times more likely to report suicidal intent than permanent visa holders.

For more information, see this explainer, and this article.

If a member of the legacy caseload has their application for a TPV or SHEV refused, they will have to leave Australia unless they can have the decision reviewed and overturned. This can only happen through merits review, judicial review or ministerial intervention.

For more information, see this Kaldor Centre research brief.

Merits review is a process where an independent person or body ‘stands in the shoes’ of a government decision-maker and reviews whether the decision was fair, and whether the decision-maker took into account all relevant facts. Merits review is available for most government decisions, including decisions to deny an asylum seeker’s application for a protection visa.

However, asylum seekers in the legacy caseload are only able to seek merits review through something called the ‘fast track process’. While decisions to deny a protection visa are usually reviewed by the Administrative Appeals Tribunal (AAT), the legacy caseload must seek review in a tribunal called the Immigration Assessment Authority (IAA). The IAA has much more limited powers than the AAT.

Some asylum seekers within the legacy caseload are denied access to merits review altogether. They are known as ‘excluded fast track applicants’. A person will be an excluded fast track applicant if they have been denied protection elsewhere, or if Minister believes they have submitted a bogus documents or that their claim is manifestly unfounded, The Minister may also exclude classes of people within the legacy caseload from access to merits review.

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For more on this, see this article in the UNSW Law Journal, by Emily McDonald and Maria O'Sullivan.

Data suggests that the IAA has affirmed significantly more departmental decisions to refuse protection visas than the AAT and other review bodies have when performing merits review.

If an asylum seeker is denied a protection visa by the department and this decision is affirmed by the IAA, they may seek judicial review of the decision. This involves going to court to argue that the decision-maker was not acting within the scope of their power when they denied the visa.

When conducting judicial review, the court will not look at whether the decision was the most fair in the circumstances, or whether the decision-maker got all the facts correct. It will only look at whether the decision-maker made a legal error – for example, by applying the wrong criteria when deciding that the visa should not be granted.

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The only remaining option for an asylum-seeker who has been denied a protection visa and who has not had this overturned through merits or judicial review is to appeal to the Minister to have a visa granted to them in the public interest.

The chances of being granted a visa through ministerial intervention are slim. Department of Home Affairs advice stresses that ministerial intervention is not part of the visa process, that very few requests for intervention are successful, and that most requests are not referred to the Minister by department staff, as they do not meet the guidelines for consideration.

Current information about ministerial interventions can be found here. Typically, cases will only be referred to the Minister in unique and exceptional circumstances. However, even if such circumstances exist, intervention is not guaranteed.

Current data on ministerial interventions in protection claims is difficult to find. Since 2013, the government has stopped providing detailed statistics about how ministerial intervention request are handled.

Several elements of Australia’s refugee protection system fall short of the standards for a fair process established under international law and best practice. Some aspects that particularly affect members of the legacy caseload are:

For a comprehensive analysis on the challenges that the legacy caseload face, see the Australian Human Rights Commission’s Lives on Hold report.

For guidelines on how Australia could build a fairer refugee protection system, see the Kaldor Centre Principles for Australian Refugee Policy.