Time and Time Again
December 6, 2016
Time, and time, and time again, immigration lawyers, support people and advocates are left with the unenviable task of explaining how long the protection obligation determination process is going to take. This task has been especially difficult in the last few years.
Kaldor Centre for International Refugee Law Conference 2016
On 18 November 2016, the Kaldor Centre for International Refugee Law at Australia’s University of New South Wales (UNSW) held its annual conference. This year’s conference was about the role of “time” in international protection.
The conference was well attended by about 200 people, including academics, students, NGOs, lawyers, Administrative Appeals Tribunal staff, Department of Immigration and Border Protection staff, and the President of the Australian Human Rights Commission.
Fragomen sponsored the opening keynote address which was delivered by Jean-François Durieux who had a 30-year career with the United Nations High Commissioner for Refugees. The event also included a closing keynote address from Professor François Crépeau, being the United National Special Rapporteur on Human Rights of Migrants. Professor Crépeau’s address came at the conclusion of his 18-day visit to Australia, examining the situation of migrants and asylum seekers.
I was very pleased to have had the opportunity to chair the first of three panels at the conference comprised of Linda Kirk (Deputy Director and Sub-Dean of the Migration Law Program at the Australian National University’s College of Law), Bruce Burson (Senior Member of the New Zealand Immigration and Protection Tribunal), as well as Professor Richard Bryant and Dr Belinda Liddell (of the UNSW School of Psychology).
Legacy Caseload
As the conference podcast shows, in chairing the panel I drew attention to the significant uncertainty relating to time faced by a group of about 30,000 asylum seekers in Australia who have come to be known as the Legacy Caseload. Broadly speaking, this group comprises of people who arrived in Australia by boat and without a visa, between two lines in the sand: on or after 13 August 2012 but before 1 January 2014.
Those who arrived at the start of this period have been particularly impacted with a very long and windy protection obligations determination road, a road of very slow, and very fast speed limits.
In July 2013, by virtue of Government funding, at high speeds, this group was promptly assisted with the preparation and submission of permanent protection visa applications on the understanding that the legislative bar on the validity of those applications would soon be lifted.
By September 2013, the speed reduced considerably. In fact, there was a red light which lasted for almost two years.
TPVs and SHEVs
In 2015, the group learned that due to legislative and policy changes:
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their 2013 permanent protection visa applications would not be considered;
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they will instead be invited to apply for a temporary protection visa (TPV) or a safe haven enterprise visa (SHEV);
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they would generally no longer have Government funded representation unless they are exceptionally vulnerable; and
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the red light had turned green.
Having waited for so long, they were told to pick the speed right up.
They were to urgently lodge a TPV or a SHEV application, participate in an interview, and then provide any post interview submission generally within 7 days.
IAA and the Courts
If refused a visa they will at best have access to a limited form of merits review by the Immigration Assessment Authority (IAA): a process which would usually be completed within only 6 weeks, generally without any interview or consideration of new information.
If unsuccessful at the IAA, the brakes would likely come on again. Due to the significant number of Court applications relating to migration decisions, the judicial review process could in many cases take 1 to 2 years or more, particularly where they are represented.
Should a Court find for them, they must strap themselves in for another quick ride through the IAA.
Best case scenario
In the best case scenario, they would be granted a 3 year TPV or a 5 year SHEV. Shortly prior to the expiry of these visas they will likely need to recommence the protection obligations determination process (unless they meet what are known as the SHEV pathway requirements and become eligible to apply for another kind of visa).
In essence, the protection obligations determination process may never end for them. It may be a process they must go through once every 3 or 5 years: time and time again.
To access other podcasts and presentations from the conference please click here.
MARN #0318952
