Significant changes to the definition of 'refugee' (Australia)

The new Immigration Assessment Authority (IAA) is expected to shortly start receiving refused protection visa cases for its review and assessment.

The IAA will only be assessing visa refusals made by 'fast track' applicants.  These are applicants that arrived by boat and without a valid visa between 13 August 2013 and 1 January 2014 and have made a protection visa application onshore.  There are also a small number of fast track applicants who arrived on Christmas Island between July 2013 and December 2013. These number around 30,000 applicants.

The IAA was established by the Migration and Maritime Powers Legislation Amendment (Resolving the Asylum Legacy Caseload) Act 2014 (RALC Act).  The IAA is a section within the Refugee Review Tribunal and is independent of the Department. Ms Sevet Haddad has been appointed the Head of the IAA and separate staff have been appointed.

The Department will automatically refer refused fast track applications to the IAA. Only refusals on refugee and complementary protection issues will be referred to the IAA. Refusals based on health and character will be reviewed in the usual manner.

The IAA will review referred decisions only, usually 'on the papers', ie there will not be formal hearings or submissions as in current tribunals process. The IAA does have the ability to contact an applicant to clarify issues within the application, usually by telephone, but will only accept new evidence in very limited circumstances. 

There will be few noticeable changes in the method of primary assessment by the Department. The changes will occur at the refusal stage, when the application will be automatically referred by the Department to the IAA. These refused applicants will not have access to the RRT.

Exclusions from fast track assessment:

Applicants will be exclude from lodging fast track applications if:

• They have access to a safe third country



• They have previously been refused or withdrawn an application for protection visa in Australia



• They have been refused protection by another country or refugee status by the UNHCR 



• Have made manifestly unfounded claims for protection



• Have no reasonable explanation for providing bogus documents 

Excluded applicants may seek judicial review from the Federal Circuit Court or review by the AAT if the application was refused on character grounds.

 

Significant changes to the definition of refugee

The RALC Act makes significant changes and delinks the definition of 'refugee' from the Refugee Convention. This in turn will determine the ability of the applicant to be granted protection by Australia.  

Well founded fear of persecution due to race, religion, nationality, membership of a particular social group or political opinion is the basis of the definition.

The new interpretation of the definition provides: 

• That one of the stated bases for persecution must be essential and the significant reason for persecution



• The applicant cannot return to any part of their home country for fear of this persecution



• The persecution involves both 'serious harm' to the person and 'systematic and discriminatory' conduct



• The definition uses the context of what is occurring 'today' in the home country to assess the risk to applicants

For membership of particular social group:

• Can be members of the same family - a member of the family unit is exposed to the persecution



• Each member of the particular social group share the characteristics and it is intrinsic and so fundamental to their identity, that it cannot or should not be forced to be changed.



• Distinguishes the group from the rest of society



• Cannot be a fear of persecution alone.

Serious harm is defined as:

• Threat to life or liberty



• Significant physical harassment or ill-treatment of the person



• Significant economic hardship that threatens ability to subsist



• Denial of access to basic services that threatens ability to subsist



• Denial of capacity to earn a livelihood of any kin and threatens capacity to subsist.

The complementary protection definition of significant harm includes:

• Arbitrary denial of life



• Death penalty to be carried out



• Torture 



• Cruel or inhumane treatment or punishment



• Degrading treatment or punishment