This is handy step-by-step guide, created in collaboration with the Refugee Advice and Casework Service (RACS) that explains the steps involved in the fast-track processing scheme.
How do Fast Track decisions of the Federal Circuit Court work for asylum-seekers?
The asylum-seekers known as “Fast Track Applicants” are affected by the current deadline.
These are asylum-seekers who arrived by boat without a valid visa - known as “Irregular Maritime Arrivals” - between 13 August 2012 and 1 January 2014.
These arrivals were not sent to detention centres on Nauru or Papua New Guinea for offshore processing - they have had to wait to apply for a protection visa, usually a Temporary Protection Visa (TPV) or Safehaven Enterprise Visa (SHEV). Some have already lodged application, others are in the process to meet the 1 October deadline.
As of 12th July 2017, there are 6339 cases sitting before both the Federal Circuit Court and Federal Court of Australia, including 1032 Fast Track matters.
What happens when an application for a protection visa by a fast track applicant is rejected by the Department of Immigration and Border Protection?
The asylum-seeker’s matter is generally referred for review by the Immigration Assessment Authority (IAA).
What if IAA rejects the application?
The asylum-seeker may approach the Federal Circuit Court of Australia for judicial review.
What does the Federal Circuit Court of Australia do?
As per the description on the court website, “The Federal Circuit Court of Australia can review some decisions made under the Migration Act 1958. These include decisions made by the Minister for Immigration and Border Protection, the AAT and the IAA.”
“Judicial review is basically the mechanism by which the courts can check that the administrative decision makers have acted properly and haven’t made a legal error - sometimes called the jurisdictional error,” solicitor Nadine Darling from the Refugee Advice and Casework Service (RACS) tells SBS Tamil.
Darling adds, “When reviewing the decision, the Court will not be concerned with the applicant’s claims of protection and their story but they will be looking at whether the decision maker followed the correct procedure.”
“For example whether they took into account all of the applicant’s claims, they didn’t consider anything irrelevant and they weren’t biased in any way.
“A small number might be excluded from the review in the IAA and only have the Department of Immigration decision. They can consider applying for judicial review at that point.”
Immigration Minister Peter Dutton, centre, poses with Yazidi refugees at Parliament House to mark Refugee Week in June 2017 Source: SBS News/Omar Dabbagh
What is the process of approaching the Federal Circuit Court?
An asylum-seeker has to lodge a judicial review application in Federal Circuit Court of Australia within 35 days of the IAA’s negative decision.
Some applicants may be granted additional time for the lodgement. However, an application for a Bridging Visa must be made before the expiry of the previous Bridging Visa - which will be approximately a month after the date of the IAA decision depending on when the Bridging Visa was granted and sometimes how it was send to the applicant.
What happens once lodged a judicial review application?
Once an application has been filed in the Federal Circuit Court, the matter will be given a first court date or direction hearing.
The Registrar or Judge will set a timetable for hearing the case. The next court date could be a call over or ‘show cause’ hearing or final hearing.
The applicant will be provided time to amend their original grounds with detailed particulars in the amended application and also to provide any further evidence such as the Department of Immigration’s interview transcript.
In a call over court attendance, the applicant may be given a final hearing date to present his/her argument.
A ‘show cause hearing’ may be fixed if the court is not satisfied that the application has raised an arguable case for the relief claimed. The application could be dismissed at this hearing.
If it is satisfied then the case will proceed to final hearing or the case will be dismissed.
Once the matter is given a date for the final hearing and if the applicant has no lawyer to represent them, they will need to be ready to tell the Court about a legal errors in the IAA decision. The court will provide an interpreter if required.
Remember: The Federal Circuit Court’s powers are limited
The Court has only limited power in reviewing the decision of the IAA. The Court cannot have a new look at any evidence provided by the applicant, but certain aspects of the legal process of the application.
Even if the Federal Circuit Court finds a legal or jurisdictional error, the Court doesn’t actually have power to grant a visa. However, the Federal Circuit Court judge may send the matter back to the IAA for their review and decision.
The IAA reviews the matter and may still conclude the same old decision and reject the application for a protection visa or changes its decision and recommends Department of Immigration for a protection visa to the applicant.
“The chance of winning a judicial review matter when asking for review of IAA decision that is actually quite difficult,” says Darling from RACS.
“We have been monitoring the case law at RACS and we know that there has been about 65 cases decided by the Federal Circuit Court to date but only five have been remitted to the IAA to make the decision again, so it is quite tough.”
Can applicants take it further?
“If the applicant is unsuccessful in the Federal Circuit Court, she or he has a right to appeal against the Federal Circuit Court Judge decision in the Federal Court,” says Darling.
“However, the applicant requires leave to appeal new grounds which were not before the Federal Circuit Court.”
What is the cost of the appeal?
“There are costs involved and there are three sets of costs actually,” explains Darling.
“First is the applicant’s own legal cost if they don’t have free legal assistance.”
“Secondly there is court cost such as filling fee and hearing set down fee which total about $1500 at the moment.
“Thirdly if the applicant is not successful in the Federal Circuit Court, the court might make an order that he or she pays the Department of Immigration’s legal cost.
“The Federal Circuit Court rules have been set down for the cost involved and if the matter goes to the final hearing the cost that the applicant might have to pay is around $7,000.”
Darling also reminds asylum-seekers that if they leave Australia without paying those costs, they might not be allowed to return to Australia until those costs have been paid.
MORE INFORMATION:
Justice for Refugees or ‘J4R@RACS’ is a judicial review referral service for fast track applicants seeking asylum in New South Wales.
‘J4R@RACS’ will try to find a barrister to provide advice on the prospects of success of the application for judicial review in the FCC.
RACS may try to find legal representation to run the matter in the FCC. RACS in NSW can be contacted on (02) 8355 7227.
